COURSE SKELETON

TOPICS:
Notice
Opportunity to be heard
Pleading
o Motion to dismiss
o Answer
o Amendment
Discovery
o Work product
o Attorney-client privilege
Settlement
Summary judgment
Voluntary dismissal
Dismissal with prejudice / Default
Right to Jury
Jury Selection
Control of jurys verdict
Finality
ADR

STAGES OF A CIVIL ACTION:

FILING
PLEADING + NOTICE
RESPONSE / MOTION TO DISMISS
DISCOVERY
SUMMARY JUDGMENT
TRIAL
APPEAL
FINALITY

Settlement looms over all of these stages.

INTRODUCTION TO CIVIL PROCEDURE

Article III, 2 U.S. Constitution:
Supreme Court and lower federal courts have limited jurisdiction, one of which hear
cases between citizens of different states. If citizens from same state, case should be heard
in state court.
Jurisdiction how our legal system assigns disputes to judges
CASE: Capron v. Van Noorden

Crisp distinction between substance (who won on merits of the case) and procedure (the
ultimate outcome of the case)
Procedural rule can be deciding factor in the outcome of a case.
Perception of procedure as technicalities or petty details justified?

Broader Themes

What is procedure?
o The means by which our legal system assigns winners and losers, through a process
that should be fair, transparent and binding.

Adversarial assumption shape American judicial procedures

o Disadvantage victory may not turn on true merits of case
o Advantages:
truer decision is reached as a result of contest directed by interested
parties
Parties are the ones principally interested in disputes resolution, so they
should shoulder the time and resource burdens

What is the test of a good system of procedure?

o
o

Does a given procedure satisfy due process?

Rule 1 Rules shall be construed to secure just, speedy and inexpensive
determination of every action
CB p. 3 just and efficient determination of legal controversies
But what do we mean by justice?
Get to the truth?
Or less about outcome and more about whether the process of
getting there should be fair?
Accuracy Principle proceedings are structured to maximize chance of
achieving legally correct outcome in each proceeding
Participation Principle - proceedings are structured to maximize each
interested partys right to adequate participation
Conflict Resolution Model provide an impartial means to resolve
grievances an alternative to relation or forcible self-help
There is often a tradeoff between justice/fairness and efficiency, and costs as
well as benefits to giving more or less procedure
Fairness
Legally correct outcomes
Parties are heard
Rights protected

Efficiency
Cost
Depriving another party of
their opportunity to be heard
Time expended by court
system

Practical Themes

Procedural rules are the product of choice, of institutional design

o Not fixed
o They change over time
Procedure comes from different sources of legal authority
o Federal courts v. state courts
o Judicial decisions, which arent codified law

Something as simple as tradition may have a legal effect

o Judicial discretion
o A certain procedure may apply in some cases and not in others
Be careful on exam cases where constitutionality of state law is attacked
(examples: Mullane, Fuentes, Connecticut v. Doehr)
Transsubstantivity

Notice
Fourteenth Amendment Due Process Clause

Nor shall any state deprive any person of life, liberty or property, without due process of
law.
o Fourteenth Amendment (states)
o Fifth Amendment (federal)

Values due process serves

o Dignity values concern for humiliation/loss of self-respect a person might suffer if
denied opportunity to litigation
o Participation values appreciation of litigation as one of the modes in which
people exert influence in the societal decisions they care about
o Deterrence values appreciation of litigation as mechanism for influencing or
constraining individual behavior in ways thought socially acceptable
o Effectuation values litigation as important means through which people are able
to have what they regard as rightfully theirs.
What values compete with these?
Posner goal of procedure: minimization of the sum of error and
direct costs
Costs of running litigation system tempers our view of how much
notice is required as a matter of the Due Process Clause?

CASE: Mullane v. Central Hanover

Fundamental requirement of due process

o notice of courts intention to adjudicate their rights
o opportunity to be heard
(which has little worth unless you have notice the matter is pending and
choose whether to contest)
Standard for proper notice (Process which is a mere gesture is not due process)
o Reasonably calculated to inform interested parties about what is happening
o Desirous of actually informing
o Afford reasonable amount of time to present objections
Does NOT say actual notice must happen. Just a reasonable attempt.
For missing or unknown beneficiaries, newspaper publication was
all you could do not unconstitutional. For beneficiaries whose

residence known, they should have been mailed. Personal service of

written notice not necessary too expensive; whole point of common
trust - its uneconomical to have a bunch of small claims
o Is court saying people with small claims entitled to less
services than those with big claims? Civil procedure is about
tradeoffs what do we gain or lose by giving more process?

Tension between different sources of legal authority

o Something that may be constitutionally sufficient may not be sufficient under the
Federal Rules
o State law violates Constitution
o Court vs. Congress holding targets NY banking law, when issue is broader. On what
basis does Court have to state rules more generally? Isnt Congress the body that
does that?

Problems with the reasonably calculated standard:

Specificity vs. Generality
o CASE: Greene v. Lindsey: Eviction notice by posting on a door cant have been
reasonable calculated when (1)Servicers knew the given conditions of this
environment (housing project, children or incoming tenants tear off) and (2)
Significant number of instances, reliance on posting fails to provide actual notice to
the tenants concerned
o HELD: Where there is a cheap and efficient way to increase the reliability of an
unreliable procedure, exclusive reliance on the unreliable procedure is a violation of
due process.
o Reasonably calculated means something different depending on the circumstances.
Eviction notice on a door is OK, but maybe eviction notice on a door in public
housing project is not OK.
o Is the better question how broad should we go?
What if, in a public housing project, tenants who get notices posted on their
doors receive the notice 90% of the timeis it reasonable to post the notice
then?

At what point do we assess reasonableness after the event or before the event?
o CASE: Jones v. Flowers: Even if letters were reasonably calculated to inform, failure
to follow up is unreasonable. Government sends notice by certified mail. Court: no
one desirous of actually informing would give up as the letters disappeared.
o Thomas dissent:
Due process doesnt require actual notice!!
NO natural end point each time it isnt clear notice has been received, State
will have to consider additional means better calculated to achieve notice.
This rule turns on speculative, newly required information

Should defendants special circumstances affect whether notice satisfied Due Process
Clause
o CASE: Covey v. Town of Somers: Notice of foreclosure mailed to insane person
without a guardian and residing in mental hospital doesnt satisfy due process

And should this be based on what the state actually knows or what the state is
reasonably charged with knowing?
o In Covey, would notice by mail have been sufficient if the town was unaware of
defendants disability?

What should be included in contents of notice?

o CASE: Aguchak v. Montgomery Ward Co: Summons violated due process because
it didnt inform the Aguchaks, who lived in a remote area in Alaska, that they could
appear by written pleading or that they had right to request change of venue.
Appearing in person would have imposed significant financial hardship.

-FRCP Rule 4 Service of Process

WHAT document is served to recipients?
4a Notice of summons
o Must name the court and parties; Be directed to defendant; State name/address of
plaintiffs attorney; State time within which defendant must appear and defend;
Notify that failure to appear and defend will result in default judgment against
defendant; Be signed by the clerk, bear the seal, etc.
4c - Must also give copy of complaint
WHO serves the summons?
4c Any person at least 18 years old who is not a party, or a US Marshal
WHEN must summons be served?
4m within 120 days after complaint is filed or court will dismiss action against defendant
without prejudice.
EXCEPTION: If plaintiff shows good cause for the failure, court must extend the time for
service for an appropriate period.
WHERE is summons served?
4e in courts of general jurisdiction in the state where district court is located
OR,
o Delivering a copy of summons + complaint to the individual personally
o Leaving it at individuals dwelling with someone of suitable age and discretion who
resides there
o Delivering copy to an agent authorized by appointment or by law to receive service
of process.
These all require ACTUAL NOTICE
WAIVING SERVICE a way to give notice other than by the rules of 4e
4d waiving service of the summons

Required?
No, but 4(d)(1) says defendant has a duty to avoid unnecessary expenses of
serving the summons. Plaintiff requests for defendant to waive service of a
summons.
o Contents of a waiver
4(d)(1)(C) - Copy of the complaint; 2 copies of a waiver form, selfaddressed, prepaid envelope for returning the form
4(d)(1)(D) inform D of consequences of not waiving
o Form of a waiver
4(d)(1)(A) must be in writing and addressed to the individual defendant
4(d)(1)(B) must name the court where complaint filed
o Failure to waive
4(d)(2) If defendant fails to answer a request to waive service, without
good cause, court must impose on the defendant the cost:
Later incurred in making service
Reasonable expenses, including attorneys fees, of any motion
required to collect those service expenses.
Why might plaintiff not want to request waiver of service?
o 4(d)(3) defendant who returns waiver need not serve answer to the complaint
until 60 days after request sent.
P may bear extra expense of personal service to give defendant only 21 days,
instead of 60, to respond to complaint
This is how law allows parties to make strategic choices
o

FRCP 12(a) Time to Serve a Responsive Pleading

(1)(A) Defendant must answer

o (i) within 21 days after being served with summons and complaint
o (ii) if its waived service under 4(d), within 60 days after request for waiver was
sent.
(1)(B) Must serve answer to a counterclaim or crossclaim within 21 days after being
served with the pleading that states counterclaim or crossclaim
(2 and 3) United States Agencies or Officers within 60 days see rule for details
(4)(A) if court denies motion or postpones its disposition until trial, responsive pleading
must be served within 14 days after notice of the courts action.
(4)(B) if court grants motion for a more definite statement, responsive pleading must be
served within 14 days after the more definite statement is served

Opportunity to be Heard

Due Process Clause requires that parties have notice and an opportunity to be heard before
government deprives of liberty or property.
o One common requirement: defendant must be informed of action (receive notice)
long enough before the time when she is required to respond to obtain counsel and
prepare defense.

CASES: Fuentes (1972); Mitchell (1974); Di-Chem (1975); Connecticut v. Doehr (1991)
Change in how courts frame the rule:

Fuentes: an almost absolute rule - must have prior hearing before any deprivation of
property
o Required:
Hearing must be provided (prior opportunity)
Hearing must provide a real test of ownership, test the probable validity of
the underlying claim against debtor (probable cause)
Hearing must be provided at a meaningful time when the deprivation of
property can still be prevented
o Purpose of constitutional right to be heard:
protects the individual from arbitrary encroachment to minimize
mistaken or unfair deprivations of property, a danger that is significant
when the state seizes simply on the basis of an application of a private party
o Responses to counterarguments
Deprivation was temporary
No damages for the mistaken deprivation can undo the fact that
arbitrary taking that was subject to the right of procedural due
process still happened
Fuentes lacked full legal title to stove
14th Amendments protection has been read broadly to protect any
significant property interest, not just safeguard rights to undisputed
ownership
Bond deters wholly unfounded applications for a writ
But still not a substitute for a prior hearing because they test no
more than strength of applicants belief in his own rights
o

Only very special interest justifies postponing notice

Important governmental or public interest
Special need for very prompt action
Person initiating seizure is government official who has right to decide

Mitchell and Di-Chem: a case-by-case determination, no longer an absolute rule

o Vague allegations vs. specific allegations (not conclusory allegations of ownership
right, but grounds for writ clearly appear from specific facts)
o Whether bond required
o Whether no post-seizure hearing in which creditor would have to prove probable
cause is ever required vs. opportunity for immediate post-seizure hearing
o Whether clerk or judge assesses the affidavit

Bargaining power/sophistication of the parties - Di-Chem: corporations deserve due

process too being without their bank account is just as irreparable a harm as
consumer without household items (Fuentes)

Merges into new standard in Doehr:

o Simply a set of factors to be weighed against one another
Consideration of the private interest
Risk of erroneous deprivation
Any government interest
And no presumption of hearing prior to seizure

Change in justices views?

o Justice White began with an absolute statement that evolved into a new framework
in Doehr. Lesson: Judges views become more subtle and refined over time. Changes
in judicial precedent are not just a matter of counting votes.

Key questions:

Fuentes is still good law - none of the cases explicitly overrule. But it was essentially
overruled. So when you have a fact pattern really similar to Fuentes, do you follow Doehr or
the earlier cases? Courts struggle here
Understand that modern day pleadings are reaction to the rules of 30 years ago, and those
rules were a reaction to the rules of 100, or 300 years ago.
So how much procedure do we really want? An open-ended question

DEFINING THE DISPUTE

Pleading

Filing - plaintiff files a

complaint

Notice - copy of
complaint sent to
defendant to give
notice

Pleading o Purpose determine what the legal issues in the case are
o NOT attempt to gather evidence for court

Historical Evolution of Pleading

Common Law Pleading

Pleading - the first

major stage of
litigation

Goal narrow to a single issue

System rife with complexity and technicality

o Success depends on technical skill of lawyer, not merits of underlying case.
o Strict pleading requirements
Many different forms of action
Cause of action tied to a particular writ, and you had to get the right
writ even getting the lawsuit started was complicated
Could not advance inconsistent or alternative allegations
o Trial by oath
Primitive the more people you have swearing youre telling the truth, the
better your chances of winning.

Common Law v. Equity

Two types of courts, distinguished by type of relief sought

o Common law compensatory damages
o Equity injunctive relief
Prerequisite if petitioner couldnt get remedy in the common law courts
Procedure in equity courts not necessarily more simply or streamlined, but
Could bring more than one issue
More liberal discovery rules, parties could do more to uncover facts
from the other side.
Chancellors had more discretion, more tailored to individual
Declaratory judgment court can declare the rights and other legal relations
of any party seeking such a declaration, whether or not further relief is or
could be sought.
Merger of law and equity into single court in 1800s, though courts still distinguished
between law cases and equity cases.

Code Pleading

Field Code of 1848 attempts to overcome problems of common law pleading

o Abolished multitudinous form of action, replaced with one form: the civil action
FRCP Rule 2
o Created rules for what complaint must plead
A statement of the facts constituting the cause of action
Identifies the cause of action

CASE: Gillespie v. Goodyear

NOTE:
o Difficulty for litigants in getting claims to comply with code pleading rules
o To what extent does procedural system hamper justice
Plaintiffs complaint found insufficient for not containing enough factual basis to which
court could apply the law
o Saying someone assaulted you or trespass is just reciting a legal conclusion

Need to say what occurred, when and where, who did what, the relationships
between the parties, etc.,
But what counts as fact, what counts as conclusion?
o Plaintiff claimed D used threatening voice -- Does this reflect a judgment about the
meaning of an event (legal conclusion), or is it referring to mechanics of what
happened (fact)?
What is the goal of pleading?
o To give a concrete picture of what happened? To give the other party notice of what
action the defendant is being sued for? To give the court enough information to
declare the law upon the facts stated?
o

Modern Pleading

FRCP reaction to excessively technical nature of old common law regime

o Compare Field Code 159 with Rule 8(a)(2) Framers deliberately avoided
Facts
statement of the cause of action
Instead used showing that the pleader is entitled to relief
In construing pleadings, shouldnt be wrapped up in technicalities

BUT difficulty arises in distinguishing between fact and law

o Someone assaults you, and you say they used harsh language
At what point does that become a statement of fact or a statement of law?

Modern analogues to common laws required forms of response to complaint:

Concept
Even if true, no
legal right
(You were mean to
me, so Im suing for
1,000. Defendant:
Even so, there is no
legal remedy for
being mean)
Not true

True, but other

facts say Ill win

Nature of Argument
legal or factual?
Legal

At Common Law

Today

Demurrer

Motion to Dismiss
for Failure to State
a Claim

Factual (denies
based on the facts of
the case, not the law
involved)
Mixes law and facts
(Introduces new
facts, claims those
facts are legally
relevant and change
the law that applies)

Traverse

Answer (denials)

Confession and
avoidance

Affirmative defense

o
o

Key element of common law pleading defendant could only pick one type of
response, and if that failed, couldnt try the other two.
Modern practice
Defendant can have motion to dismiss based on failure to state a claim, and
if that fails, can try again with either answer, affirmative defense or both

FRCP 1 Scope and Purpose

FRCP governs procedure in all civil actions in US district courts

Purpose of rules resolve civil actions in a just, speedy and inexpensive manner

FRCP 2 One Form of Action

There is one form of action the civil action

o Note used to be two courts common law and equity

FRCP 3 Commencing an Action

A civil action is commenced by filing a complaint with the court

FRCP 7 Pleadings Allowed; Form of Motions

7(a) Only these pleadings are allowed

o Complaint
o Answer to complaint
o Answer to designated counterclaim
o Answer to crossclaim
o Third-party complaint
o Answer to third-party complaint
o If court orders, reply to an answer
7(b) Request for court order has to be by motion. Motion must be (A) in writing, (B) state
with particularity the grounds for seeking order and (C) state the relief sought.

FRCP 8(a) Pleading Requirements

Pleading that contains a claim for relief must state:

o 8(a)(1): Short and plain statement of grounds for courts jurisdiction
o 8(a)(2): Short and plain statement of the claim showing that the pleader is
entitled to relief
o 8(a)(3): Demand for the relief sought, may include alternative or different types of
relief

FRCP 8(e) Pleadings must be construed so as to do justice

CASE: Dioguardi v. Durning (Judge Clark founding father of FRCP) Complaint is poorly
written and difficult to understand. Plaintiff is non-native English speaker, no attorney.
Defendant files 12(b)(6) motion for failure to state a claim. In general lower pleading
requirement for pro se litigants

Not necessary for claim to state a cause of action, state legal argument, or be
unambiguous
o What IS required - Contain enough facts, which, if true, entitle litigant to his day in
court. Be clear enough that judge, after a careful reading, can construe the cause of
action from the language of the complaint.
Duty of district courts at pleading stage
o Cutting off cases that will lose anyway?
Evaluating whether the words in the complaint comply should be influenced
by concerns about cost of cases?
o Or try to decode a complaint?
Puts more pressure on judges
Has FRCP made it easier or harder to file a complaint?
o Is there a distinction between a cause of action and a statement to entitlement for
relief?
Cause of action has a certain name or words; ex. Breach of contract
Cause of action the factual circumstances creating the legal issue
for which someone is seeking relief
Statement is where, maybe, you dont have to say the name or words
But distinction not always clear
o

FRCP 12 Defenses and Objections

Response and Timing when to serve a responsive pleading
12(a)(1)(A) Defendant must answer
o (i) within 21 days after being served with summons and complaint
o (ii) if its waived service under 4(d), within 60 days after request for waiver was
sent.
12(a)(1)(B) Must serve answer to a counterclaim or crossclaim within 21 days after
being served with the pleading that states counterclaim or crossclaim4)(4
12(a)(2 and 3) United States Agencies or Officers within 60 days see rule for details
12(a)(4)(A) if court denies motion or postpones its disposition until trial, responsive
pleading must be served within 14 days after notice of the courts action.
12(a)(4)(B) if court grants motion for a more definite statement, responsive pleading
must be served within 14 days after the more definite statement is served
Defenses
12(b): How to present defenses.
o Every defense to a claim must be asserted in the responsive pleading. But you can
do the following defenses by motion:
o (1) lack of subject matter jurisdiction (never waived)
the constitution and statutes under which court operates must have
conferred on it the power to decide this type of case
o (2) lack of personal jurisdiction (can be waived by not mentioning)

jurisdiction over the persons involved in the suit, as opposed to jurisdiction

over the determinations of law and fact to be made in the case.
o (3) improper venue (can be waived)
o (4) insufficient process (can be waived)
Not dispositive: Court will ask you to do redo complaint if improper
o (5) insufficient service of process (can be waived)
Not dispositive: Court will require proper service before moving forward
o (6) failure to state claim upon which relief can be granted
o (7) see rule
12(c): Judgment on Pleadings
o After pleadings close but early enough not to delay trial, party may move for
judgment on pleadings alone
Note: Party moves to have court rule in his favor based on the pleadings
alone, without accepting evidence, like in cases where outcome of case
depends only on courts interpretation of the law.
12(d): When 12(b)(6) Turns Into SJ
o If rule 12c or 12b6 motion includes things outside pleadings & judge doesnt strike
them, then the motion is treated as Rule 56 Motion for Summary Judgment
o All parties have to be given a reasonable time to present all material pertinent to the
motion
12(e): Motion for More Definite Statement
o Only if the pleading if so vague or ambiguous that the party cant reasonably prepare
a response
o Has to be made before filing a responsive pleading and has to point out the defects
o If court orders a more definite statement and order not obeyed within 14 days,
court can strike pleading
12(f): Motion to Strike
o Court can strike insufficient defense or stuff thats redundant, immaterial,
impertinent or scandalous, either sua sponte or on a motion made by a party
o NOTE: Courts disfavor this motion because it can be used to harass or delay process

Waiving Motions
12(g): Joining motions
o 12(g)(1) Motion under this rule can be joined with any other motion allowed by
this rule
o 12(g)(2) you waive any motions that you do not join together that were available
to the party but omitted from earlier motion
NOTE: If you make pre-answer motion on one of the 12(b) defenses, you
have to include in that motion all defenses available to you. You cant raise
one of these defenses if you could have included it in a pre-answer motion.
12(h): Waiving and Preserving Certain Defenses
o 12(h)(1) Defenses that cant be raised again

Party waives any of the Rule 12(b)(2-5) defenses by failing to make it by

motion or by failing to include it in a responsive pleading or in an
amendment as allowed by 15(a)(1) as a matter of course
NOTE: Purpose procedural issues should be noticed early, and to
prevent piecemeal attacks.
12(h)(2) Defenses that can be raised at several different points
12(b)(6) motion, or failure to state a legal defense to a claim can be raised
(a) in any pleading allowed or ordered under Rule 7(a)
(b) by a motion under Rule 12(c)
(c) at trial
12(h)(3) Defenses that can be raised at any time
If court determines at any time that it lacks subject-matter jurisdiction,
court must dismiss action
NOTE: Subject-matter jurisdiction is something courts take really seriously

12(b)(6) Failure to State a Claim

Party can assert a defense by motion to a claim for relief in any pleading by asserting
failure to state a claim upon which relief can be granted
o NOTE: Two ways claim can be dismissed
Complaint doesnt state a claim for which there is legal relief. The act isnt a
violation of ones legal rights
Complaint fails to state one or more of the necessary components of the
claim. Ex. Fraud you need intent + the plaintiff has to have acted on and
tangibly gotten hurt by that info. In the plaintiffs complaint, P cant show
they suffered tangible damages as a result of acting on the allegedly
fraudulent information.
o NOTE: P who has case dismissed under 12(b)(6) motion is generally given a right to
amend his complaint under 15(a) if defect can be corrected. But if case is dismissed
with prejudice, would have to appeal. Distinction dismiss the complaint, and
dismissing the case (drastic measure; if the suit is dismissed, P can never bring the
case again. This is why courts give P the benefit of the doubt, and assume the facts
are true)
o Federal Rules want cases to be decided based on merits, so P should be given
opportunity cure defects in pleading, even when district judge doubts P will be able
to overcome defects

CASE: Conley v. Gibson

Complaint should not be dismissed for failure to state a claim unless it appears beyond
reasonable doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.
o NOTE: Literal reading doesnt make sense suggests that a complaint fails only it
has absolutely no set of facts. Contrary to popular perception, Conley complaint set

forth lots of facts (how many were fired; of those, how many black; how many
immediately rehired were white)

Form 11

Illustrates how much detail is needed to survive a motion to dismiss

On ____ date, at _____ place, defendant negligently drove vehicle against plaintiff
As a result, plaintiff was injured, lost wages, incurred ____ medical expenses
o Causation suggested as a result
o Specifies certain facts date, time, expenses incurred
o But negligently a fact or a legal conclusion?

Plausibility

Distinction between legal sufficiency and factual sufficiency is not that clear:
o Factual sufficiency Have you stated enough fact to give opposing party notice and
to plausibly state your claim?
But plausibly stating the claim involves legal issues
o Legal sufficiency Even if facts are true, was the act illegal?

CASE: Bell Atlantic v. Twombly

Courts view of pleading standard under Rule 8

o Plausible claim for relief based on well-pleaded facts
Need not have detailed facts
Can be allowed even if judge thinks facts are unlikely
But need more than neutral, and there needs to be reasonable expectation
that discovery will reveal evidence
o
o

NOTE: What is a properly-pleaded fact?

NOTE: Whats the line between plausible and probable?
Probable = more likely to be true than not
But more than neutral would be 51/49, a probability standard

Pros and cons of plausibility standard:

Pro keep out groundless claims
Con keeps out people who have grounds but arent able to express that
sufficiently in their complaint.
Places more responsibility on the judge to make assessments
How competent is the judge to assess that probability? In our
adversarial system the judge is the party with the least information
And with difficult problemsex. How is judge to find out if theres
been collusion if the parties themselves dont even know?

Not enough:

o
o
o
o

In terrorem effect
o Majority is worried D will be forced to settle groundless suit because theyd rather
not be forced to deal with immense costs of discovery
o

Recitation of the elements of the cause of action

Naked assertions devoid of factual support
Legal conclusions
Parallel conduct consistent with an alternative explanation
Standard is a little lower because case is at pleading stage, not trial or
summary judgment, so parties havent had opportunity to gather evidence.

Rebuttal: Case management an attentive judge who keeps tabs on the case will
prevent it from getting too far, and has lots of procedural tools. Justice Stevens,
dissenting, mentions:
Sanctions Rule 11: 11(c) authorized wide array of sanctions ifsuit is
presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation.
Before discovery even begins - motion for a more definite statement 12(e)
Discovery case plans and other discovery controls
Rule 16(c)(1) pretrial conferences at which parties discuss
elimination of frivolous claims and defenses
Rule 16(c)(2) order amended pleadings
16(c)(6) control or schedule discovery
16(c)(12) judge may adopt special procedures in case with
complex issues, multiple parties, difficult legal questions
Summary judgment Rule 56

Costs of discovery
o NOTE: A possible reading of Twombly required level of pleading is dependent on
the cost of discovery should the pleading be upheld.
As the costs of discovery mount, the case for terminating litigation earlier in
the cycle becomes stronger
Early termination particularly appropriate when the plaintiff relies
on widely available public information that can be rebutted by other
widely available public evidence.
o Cost-shifting in discovery
American rule pay your own way
Should we make the requesting party pay?
What if D is large corporation? Maybe expense of discovery would
discourage P, because P will only ask for it if the P believes theres a lot to be
gained in damages. But seems unfair to P with legitimate claim to damages
that are smaller than expense of discovery.
o Neither Conley and Twombly were really about pleading

Conley about civil rights, and the fact that pleadings came up was
incidental to case.
Twombly more about COSTS, protecting certain types of parties and
litigation, and pleading was a way to do that.

Transsubstantivity plausibility standard for cases other than antitrust?

o Use of Rule 8(a)(2) suggests their holding is broader. Using the Rule, that falls under
Rule 1 the scope of rules apply to all civil actions
o Yet opinion also indicates antitrust cases are special due to immense costs of
discovery

Changes in courts or lawyers behavior?

o Commentators predicted lots more pleadings, cases dismissed. Judges would be
more aggressive on complaints after Twombly
o Prof: No dramatic change, at least right away, in dismissal rates
o The idea plaintiff would try to be more specific
But werent they being as specific as they could all along?
Prof: When I was practicing, which was pre-Twombly, the
complaints looks more like the amended Twombly complaint (lots of
details, names, places, dates, facts) than like FRCP Form 11
Dissent
o Sua Sponte
Whether to retire language in Conley wasnt brought up by parties at all?
What are we gaining institutionally when courts take their own initiative to
change rules when it hasnt been brought up?
o Majority is undoing 70 years of FRCP specifically avoiding the battle from code
pleading era over what was factual conclusion vs. legal conclusion.

Arbitration a solution the majority didnt anticipate

o Arbitration agreements between large corporations and individual consumers
creates a venue where theres no use for the class action device (so, no way to
spread costs of litigating over large class of plaintiffs, and no award of damages to
big group of people)

CASE: Erickson v. Pardus

Right on the heels of Twombly, but just said all the complaint had to do was to give fair
notice to the defendant of what the claim is and the grounds on which it rests
o Pro se litigant federal prisoner

CASE: Ashcroft v. Iqbal

Two-part test

Accept only factual, not conclusory allegations as true

Once youve accepted the facts as true, factual allegations must present a
PLAUSIBLE claim for relief
Plausibility standard
o Where is the line between possible and plausible?
o Consistent with nondiscriminatory story, so not plausible
Twombly: if its 50/50, thats not good enough
o
o

o
o
o

NOTE: Prof - Youre making a baseline assumption here, though, that when this sort
of fact pattern comes up, you believe one is more likely than the other.
NOTE: Problem the 5% of discrimination cases that really are discrimination cases
on the merits they wont be able to make their case unless they have discovery
NOTE: If youre Iqbal and dont have benefit of discovery, what more CAN you say
other than petitioners willfully and maliciously rounded up suspects?

What is gained and lost by the court, institutions, society, from taking this
approach?

Court does say that while Twombly expounded the pleading standard for all civil actions,
determination of whether a complaint states a plausible claim for relief will be a contextspecific task that requires the reviewing court to draw on its judicial experience and
common sense.

Dissent:
o Majority misunderstood Twombly
o You do NOT ask whether the facts are plausible, but whether the facts, whether or
not theyre likely, present a plausible claim for relief.
You do not question the plausibility of factual allegations. Not whether facts
are implausible, but whether the claim is plausible
Reconciling Twombly and Iqbal maybe they werent about pleadings at all
o Both were exceptional cases
This was about 9/11
And to resolve uncertainty - Twombly majority wasnt that clear about how
far Twombly should go antitrust cases, or all?

CASE: Swanson v. Citibank

Tries to reinterpret plausibility standard, but not that helpful

o enough detail to present a story that holds together
Asymmetric discovery burdens
o Discovery is expensive, would compel D to settle even if P has no claim
o Posner dissent skeptical that case management can control asymmetric discovery
costs

Busy districts; magistrate judges err on permissive side because unsure

which claims district judge will want to hear down the road
Different pleading standards for complex v. simple, unexceptional cases?
o Majority complex cases might require more detail
o Higher standard with fraud cases? Rule 9(b)
Court goes easier on pro se litigants
o Swanson, DioGuardi, Erickson

Specificity and Consistency

FRCP 8d Be Concise; Alternative and Inconsistent Statements OK; Construe to Do
Justice

8(d)(1) each allegation must be simple, concise, direct; no technical form required
8(d)(2) party can make two or more claims or defenses; if any one of them is sufficient,
then the whole pleading is sufficient
o NOTE Why? Because Courts recognize that parties cant know exactly what
direction facts will go
8(d)(3) party can state as many claims or defenses it has, regardless of consistency
o NOTE does 8d put pressure on 8(a)
If claims are inconsistent, isnt one of them false and not plausible?
In real life plaintiff puts forth inconsistent claims, and then see which one
is right once they get through with discovery

FRCP 9b Fraud or Mistake (heightened pleading standard relative to Rule 8)

In alleging fraud or mistake, party must state with particularity the circumstances
constituting fraud or mistake.
o Malice, intent, knowledge, and other conditions of a persons mind may be alleged
generally.
o NOTE: But generally doesnt mean conclusory allegations still need to back up
with facts. Just means rules acknowledge that its difficult for individuals to be mind
readers in their pleadings.

CASE: Tellabs v. Makor

PSLRA (super heightened pleading standard) (statutory, not FRCP)

o Tries to curb strike suits
P tries to win settlement that is less than Ds legal costs
Costless to file; lacking in merit; able to extract lots of money from defendant
(corporate client; this is an issue thats difficult to uncover)
Strong inference standard (referring not to allegations but to scienter intent to defraud or
deceive)
o Facts must be particular
o Facts must give rise to strong inference

Court: Congress is unclear about what is a strong inference, so:

o Must accept all factual allegations as true (all pleading standards have this rule)
o Look at complaint in its entirety
Versus Swanson, where court distinguished between legally relevant facts
and extraneous facts and looked at certain facts in isolation
o Account for opposing allegations
And then do a comparative analysis is the claim at least as plausible as
opposing explanation?

FRCP 10 Form of Pleadings

10(a) Every pleading must contain caption and name all the parties
10(b) state claims or defenses in numbered paragraphs, each limited as far as practicable
to a single set of circumstances; if it promotes clarity, state each claim or defense (other
than a denial) founded on a separate transaction or occurrence must be stated in a separate
count or defense.
o NOTE: Alternative Allegations
Original common law rules designed to narrow pleadings to one issue
All courts now permit inconsistent allegations, if made in good faith
Separate statement requirement
10(b) no formal requirement, but as far as practicable, each
paragraph should be limited to a single set of circumstances
When party violates, appropriate motion compel separate
statements, or motion to strike. But party will be allowed to amend
pleading to conform to rules.

FRCP 11 Sanctions

11(a) signing
11(b) By presenting a pleading, motion or other paper to the court, the party is certifying
that:
o (1) its not presented for any improper purpose such as to harass, cause
unnecessary delay or needlessly increase cost of litigation
o (2) the claims, defenses and legal contentions are warranted by existing law.
Were not making frivolous arguments for changing or reversing existing law or
establish new law.
o (3) the factual contentions have evidentiary support, or will have support after
discovery
o (4) denials of factual contentions are supported by evidence, or are reasonably
based on belief or lack of information
NOTE: 11(b)(4) is for denials, not admissions!
11(c) Sanctions

11(c)(1) - If court determines 11(b) violated, then, after notice and reasonable
opportunity to respond, court can impose sanction. Law firms jointly responsible for
violation by employees
11(c)(2) Motion for sanction cant be filed if the improper claim, defense, paper is
withdrawn or corrected within 21 days after service or within another time the
court sets. If warranted, court MAY award reasonable expenses, incl. attorneys fees,
incurred to prevailing party in making the motion
11(c)(3) on its own initiative, court can order an attorney or party to show why
their conduct didnt violate 11(b)

NOTE: places limits on the creativity with which one can approach pleading, so that lawyers
dont just make up enough facts to survive a motion to dismiss in every case.
NOTE: Rule 11 does not apply to discovery. See 26(g)
NOTE: Sanctions are interlocutory in nature. Appealability?

Amendment & Relation Back

FRCP 15 Amended and Supplemental Pleadings

NOTE: The rules purpose is to provide maximum opportunity for each claim to be decided
on merits rather than on procedural technicalities
o So district courts are to take permissive approach to amendment requests, no
matter what their character may be
o Contrast to common law and code restriction that amendments couldnt change the
original cause of action
NOTE: Rule 15 reflects the fact that federal rules assign pleadings a limited role
o Provide notice of the nature of the pleaders claim or defense
o Provide notice of the occurrence or event thats being called into question
No longer carry burden of fact revelation and issue formulation
NOTE: Court will deny amendments when
o Legally insufficient claims - where the added claim fails to state the claim upon
which relief can be granted
o There is clear prejudice to opposing partys ability to defend its case
o In bad faith a strategic move to spring a new claim at the last minute, ex.
Waiting to add a claim until itll be difficult for opposing party to hire an
expert
o Whether party already had opportunities to amend and failed to add an available
claim or defense in the earlier amendment.

15(a) Amendments Before Trial

o Statute of limitations party has a certain time limit within which to bring a suit
Repose for defendant should be able to know that after a certain time they
wont be sued
We dont want P to sit on their rights; should bring suits in a prompt manner

15(a)(1) absolute right to one amendment to your pleading at any time

o (A) 21 days after serving the pleading
Used to be that you had right to amend only before being served with
responsive pleading. Amended in 2009 because the responsive pleading
may point out issues that the original pleader hadnt considered and
persuade the pleader that amendment is wise.
o (B) if its a pleading to which response required, 21 days after service of responsive
pleading OR 21 days after motion under 12 (b), (e), (f) is served
15(a)(2) in all other cases, party may amend its pleading only with opposing partys
consent OR the courts permission. The court should freely give leave when justice so
requires.
o NOTE: Wallace Hardware Co. v. Abrams p. 629
Delay alone is never a sufficient basis for denying leave to amend, no
matter how long the delay
Does this go too far? Even in cases where there is no prejudice to opposing
party, are there reasons for denying leave to amend at some point?

15(b) Amendments During and After Trial

15(b)(1) If party objects that evidence isnt within pleadings, court can permit pleadings
to be amended. Should permit when doing so will:
o aid in presenting the merits
o objecting party fails to establish they would be prejudiced
NOTE: Basically, automatic amendment of pleadings to conform with
evidence at trial. Parties may, with leave of court, amend pleadings to
conform to issues raised by unexpected evidence.
NOTE: Tactical dilemma for plaintiff in case where opposition tries to
introduce evidence at trial on an issue that clearly isnt within the pleadings
Object and try to keep evidence out
o Opponent will just request leave to amend
Failure to object
o This will be taken as implied consent to try the issue, thus
permitting an amendment to conform to the proof
o Failure to object raises second dilemma whether or not to
produce evidence on the point in question

15(b)(2) If issue not in pleadings is tried by parties express or implied consent, then
the issue must be treated as part of the pleadings
o Moore v Moore (not discussed in class; p. 627)

15(c) Relation Back of Amendments

(Basically treats filing date of amended complaint as if it were the date on which you filed the
original complaint)

15(c)(1) An amendment to a pleading relates back to the date of the original pleading
when:
o (A) the applicable statute of limitations allows relation back, OR
o (B) amendment asserts a claim/defense that arose out of the same
transaction/occurrence set out in the original pleading, OR
o (C) amendment changes the party against whom claim is asserted
15(c)(1)(B) must be satisfied (original transaction/occurrence)
Within the 4(m) (120 days) timeframe for serving the summons and
complaint:
(i) new party must have received notice of the original suit so that it
wont be prejudiced in defending itself on the merits
(ii) new party knew, or shouldve known, that if not for the mistake
in identity, the lawsuit would have been brought against them.
NOTE: High standard only applies to situations of honest mistake in
identity
Unknown identity is not mistaken identity
In most circuits, you cant file cases against Doe defendant, then find
out names and have it relate back later. This rule is meant to
encompass an honest mistake in identification by the plaintiff, not an
abject failure to name a party.
CASE: Goodman v. Praxair
o 2 competing policies
Simplicity we want to focus on merits, not have cases turning on
technicalities.
Repose defendant should have predictable repose from claims after a
specified amount of time has passed
How Court resolves freely permit amendment of pleadings and
their relation back so long as the policies of the statute of limitations
have been effectively served
o Doe cases interesting, because Doe defendants wouldnt have had notice.
So parties substituted for Doe defendants would be protected against being
added because they didnt have proper notice, or would be prejudiced
o Western Contracting Goodman court says defendants had same attorney, so
theres no way they couldnt have received notice.
Does this case incentivize parties to have separate attorneys so they can
avoid relation back?

15(d) Supplemental Pleadings

On motion and reasonable notice, court may permit party to serve supplemental pleading
setting out any occurrence that happened after the date of the pleading to be supplemented
May permit supplementation even though the original pleading is defective in stating a
claim or defense; may order opposing party to answer the supplemental pleading within a
specified time

NOTE: This is not granting leave to assert new claims, only lets party supplement existing
claims.

Answer / Responsive Pleadings

FRCP 8(b) Admissions and Denials

8(b)(1) in responding to pleading, party must state

o (A) short and plain, state defenses to each claim asserted against it
o (B) admit or deny allegations
8(b)(2) denial must fairly respond to substance
8(b)(3) can do general denial (deny all allegations, including jurisdiction) or specific
denial (designate specific allegations to be denied)
o NOTE: General denial is discouraged - not useful as a way to narrow the issues in
controversy.
o Still subject to constraints of Rule 11
o Use of general denial can be risky, since court may decide general denial doesnt
fairly respond to the substance of the allegation, and deem a general denial to have
admitted plaintiffs specific assertions.
8(b)(4) must admit part of allegation thats true and deny the rest
8(b)(5) if party lacks enough knowledge to form a belief about the truth of an allegation,
have to state that, and that has effect of a denial.
8(b)(6) if responsive pleading to an allegation is required, failing to deny = admit
o NOTE: Why not just deny every one? Makes the judge angry. Good litigators
understand when to concede, when to move on.
o NOTE: Improper forms of denial
Denial for lack of information 8(b)(5) allows party to deny if they lack
knowledge sufficient to form a belief about the truth, but there are limits.
Cannot deny for lack of information stuff that is presumptively, should be,
within your knowledge
Conjunctive denial: You did A, B and C
Cannot respond: I didnt do A, B and C because leaves open the
possibility that I didnt do C, but I did do A and B.
Negative pregnant denial: You denial is so ambiguous that it doesnt state to
what degree your answer diverges from the complaint
Ex. Plaintiff alleges defendant owes her 89,000. D denies he owes
plaintiff 89,000. Could mean you owe one cent less.
These technical decisions not common today. Modern procedure is
an order under FRCP12e for a more definite statement rather than a
dismissal
CASE: Beeck v. Aquaslide
o Now, talking about defendants pleadings
Rule 15(a) you can request leave to amend pleading an answer
o 3 rules in Beeck leave to amend will be given when

o
o

Doing so serves justice

No prejudice to the party opposing the amendment is shown
Trial court has shown abuse of discretion
Prejudice to defendant if they were forced to defend a slide they didnt make
But prejudice to plaintiff too, because plaintiff can never recover. Both
parties are prejudiced.
Case highlights a tension in litigation
Outcomes of trial may not perfectly align with objective reality
Procedural issue of whether you get to file an amendment seems so trivial
But ends up deciding the outcome of the case. Does Beeck have to pay for
crippling injury or not?

NOTE:

FRCP 8(c) Affirmative Defenses

8(c)(1)
o Accord and satisfaction agreement for alternative means of discharging debt
o Arbitration and award issue was already arbitrated
o Assumption of risk
o Contributory negligence
o Duress
o Estoppel alleging reliance on misleading representation of something and an
injury results from that reliance
o Failure of consideration deficient contractual performance that results in contract
being void
o Fraud misrepresentation which induces another to act to his detriment
o Illegality contract was illegal
o Injury by fellow servant
o Laches delay in pursuing claim, in a way that prejudices defendant
o License defendant had permission to commit the act
o Payment obligation satisfied by payment?
o Release liberation from duty (ex. Release form signed by plaintiff)
o Res judicata this has already been litigated
o Statute of frauds statute requiring that certain contracts need to be signed and in
writing
o Statute of limitations
o Waiver voluntary relinquishment of a right
8(c)(2) Mistaken Counterclaim Designation
o If party mistakenly designates a defense as a counterclaim or vice versa, court must,
if justice requires, treat the pleading as though it were correctly designated.

DISCOVERY

For exam, think in general terms about how you would formulate a discovery plan
o Not just, we should take depositions
But ask of whom? Who should we depose?

Should we request a physical or mental examination?

What documents should we be concerned about requesting, and what will
be requested of us?
How can I argue that something is, or is not, protected? And protected by
what? A/c privilege and work product are two different things
Tension between wanting lawyers to be zealous client advocates and wanting to encourage
cooperation in discovery in order to promote just arbitration of issues
Theme: How broad should discovery be?
Rationales for discovery
o Preserve information that may not be available later
Ex. Aged or ill witness
o Identify/narrow the issues in dispute so case can be adjudicated more efficiently
Under common law, this task taken care of by pleading (narrow to single
issue). So no discovery in common law.
o Inform parties about what information the other side has
Why? To avoid trial by ambush
Arrive at more just conclusion
o Common law adjudication more about skill and cunning of
lawyer than the merits of the case, their ability to keep
secrets and spring surprises.
o If both parties have lots of information, lawyers build best
possible case for each side, arrive at just outcome
Defending trial by ambush
Less time for other side to prepare an elaborate lie
Are you more likely to get settlements beneficial to both parties in a regime
of trial by ambush or regime of broad discovery?
Ideally, broad discovery encourages settlement by educating the
parties about the strengths and weaknesses of their cases.
How do you define just settlement? One that reflects the relative
strength of evidence for each side? What if you have meritorious
claim but somewhat weak evidence?
What if the party with better evidence unfairly bullies the other
o Private attorneys general
American system process of enforcing legal regulations largely in hands of
private parties who enforce law by seeking civil remedies in court (ex.
Discrimination suits)
NOTE: Is civil discovery the right mechanism for transparency on the
workings of government?
Cost-effective?
Theres value to government keeping some information private. How
does this balance against our impulse to make discovery broad.
Discovery bad
o Massive costs

And discovery request is cheaper than finding out info yourself, so parties
have incentive to rack up costs on either side with unnecessary requests
o May exacerbate adversarial process gamesmanship; incentives to not answer
requests properly
o Judges arent involved in discovery perhaps violations go unpunished
NOTE: Discovery doesnt start until parties have had 26(f) and 16(b) conferences

Scope
FRCP 26(a)(1) Required Initial Disclosures

(A) Without waiting discovery request, must provide to other party

o (i) Names, contact info of all individuals with discoverable information that
disclosing party may use to supports its claims or defenses
o (ii) Copy of all documents disclosing party has in its possession or control which it
may use to support its claims or defenses
o (iii) computation of each category of damages claimed by disclosing party, and the
documents on which each computation is based, unless that info is privileged
o (iv) any insurance agreement under which an insurance company may be liable to
satisfy any part of a possible judgment
NOTE: FRCP adversarial discovery. No party obligated to help other side
o You provide information youre going to use to build your case. (info that disclosing
party may use to support its claims or defenses)
o But NOT required to provide information that could help other sides case. Does not
mean, however, you get to hide the information they just have to ask for it.
Discovery abuse:
Either party can do it each other
o Failure to cooperate
o Seeking unnecessary evidence
Does the adversary system provide incentives for discovery abuse?
o Hourly billing
o American rule for attorney compensation
o Contingency fee
NOTE: The possibility of settlement affects discovery practice
o Rigorous discover everything, disclose nothing strategy, spending that time and
money premised on assumption that trial is a realistic possibility
o But that strategy doesnt make sense in the possibility of early settlement.
(B) Exemptions from initial disclosures
o P. 61
(C) Time for Initial Disclosures - At or within 14 days of 26(f) conference, unless different
time by agreement or court order
(D) for parties joined or served later, 30 days after being served or joined
(E) unacceptable excuses for not making disclosures: (1) party didnt fully investigate the
case; (2) it believes other partys disclosures are not sufficient; (3) other party has not made
its disclosures.

FRCP 26(b)(1) Discovery Scope in General CRUX OF ALL THE DISCOVERY RULES

Any non-privileged matter relevant to any partys claim or defense

o Including any documents or materials and identity and location of individuals who
know of any discoverable mater
o NOTE: No court approval needed parties just do it themselves.
For good cause, court may order discovery of any matter relevant to subject matter involved
in the action
o NOTE: There is court involvement
Relevant info doesnt need to be admissible at trial if discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
o NOTE: This means some evidence, though true, cant be admitted at trial
Ex. Hearsay is relevant but not admissible at trial. Can still be admissible at
discovery so long as its likely to lead you to other evidence that WILL be
admissible at trial.
All discovery subject to Rule 26(b)(2)(C)
o NOTE: Redundant to mention (all the rules are binding), but judges were ignoring
this rule

FRCP 26(b)(2) Discovery Limitations Frequency and Extent

(A) Court can alter limits on rules on number of depositions or interrogatories or on the
length of the depositions
o NOTE: This rule gives district courts lots of discretion. There are these limits, but
judge can use his judgment to decide that case needs more or less discovery.
(C) Court can limit discovery if:
o (i) unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome or expensive
o (ii) party seeking discovery had ample time to obtain information by discovery in
the action
(You had your chance and blew it)
o (iii) If burden or expense of discovery outweighs the benefits.
NOTE: So even if material is nonprivileged and relevant, still cant be
discovered if
Unreasonably cumulative or duplicative, couldve been gotten it
somewhere else for cheaper, less burdensome
You had your chance and lost it
Benefit of discovery outweighed by burden or expense of discovery
NOTE: Court is making cost-benefit calculations

FRCP 26(c) Protective Orders

See p. 71

Court may issue, for good cause, to protect party from annoyance, embarrassment, undue
burden or expense

FRCP 26(e) Correcting or Supplementing Disclosures and Responses

26(e)(1) A party who made 26(a) disclosure or who responded to interrogatory, request
for production or request for admission has to supplement or correct its disclosure or
response
o (A) in a timely manner if the party learns the material is incomplete or incorrect
o (B) as ordered by court
26(e)(2) For expert whose report has to be disclosed under 26(a)(2)(B), party has duty to
supplement information included in report and information given during the experts
deposition

FRCP 26(f) Conference of the Parties; Planning for Discovery

26(f)(1) Must confer as soon as practicable, and at least 21 days before scheduling
conference or before 16(b) pre-trial conference
o NOTE: Goal get parties talking to each other so they work out disagreements
sooner rather than later.
o NOTE: Is there a way in which more communication between the sides leads to
dead end or to compromise? Prof both can be true
26(f)(2) Conference content
o Consider possibilities for settlement
o Arrange for disclosures
o Discuss any issues in preserving discoverable information
NOTE: Not explicit in rules, but parties are under general obligation to
preserve content, so that if other party asks, the information is still available.
o Develop proposed discovery plan
Parties jointly responsible for arranging conference, conducting it in good
faith and submitting proposed discovery plan to court within 14 days after
conference
26(f)(3) Discovery plan must state parties views and proposals on
o (B) subjects on which discovery needed, when discovery completed
o (D) any issues about claims of privilege or protection of trial-preparation
materials
o NOTE: The rule benefits courts. Parties do the work to figure out what will happen,
when and how, and court rubber stamps it. Arguably, parties should be doing this
anyway, because they know the issues better than the judge.

FRCP 16 Pretrial Conferences (skim)

16(a): Purpose establish schedule

16(b): Judge must issue scheduling order
16(d): Court required to issue order for any conference after a Rule 16 conference

NOTE: This rule gives judges broad power in terms of case management. Judge
functions as a managerial fixer in the situation of pre-trial settlement. Somewhat of
a departure from the adversarial model.
In any action, court may order attorneys to appear for pretrial conferences
to expedite disposition of action, establish control so case isnt delayed due
to lack of management, discourage wasteful pretrial activities, improve
quality of trial through more thorough preparation, facilitate settlement
Matters for consideration at pretrial conference formulating and
simplifying issues, eliminating frivolous claims, amending the pleadings,
obtaining admissions, avoiding unnecessary proof and cumulative evidence,
determining appropriateness and timing of summary judgment, controlling
and scheduling discovery, etc. p. 42.

FRCP 26(g) Signing Disclosures and Discovery Requests

NOTE: Signing = attorney certifying its correct, that arguments made are consistent with
law, and doing it for good faith reason, not to harass opponent.
NOTE: Rule 11 equivalents for discovery
26(g)(1) Every disclosure/discovery request, response or objection must be signed by at
least one attorney. Signature certifies that, to the best of the attorneys knowledge,
o (A) with respect to a disclosure, its complete and correct at the time its made
o (B) with a discovery request, response, objection
(ii) not done for purpose of harassing, causing unnecessary delay or
needlessly increasing the cost of litigation
26(g)(2) Failure to sign other parties have no duty to act on an unsigned disclosure,
request, response, or objection until its signed.
26(g)(3) If certification violates this rule without substantial justification, court MUST
impose sanction. Can include having party pay reasonable expenses caused by violation,
including attorneys fees.

Discovery Devices
FRCP 30(a) Oral Depositions
Deposition = examination of witness pre-trial
Who attends
Attorney defending deponent (can interject with objections)
Deponent
. Deposing attorney
Court stenographer
30(a)(1) Party can depose any person by oral deposition, including a party, without leave
of court except as provided in FRCP 30(a)(2)
30(a)(2) Must obtain leave of court when
o (A) parties havent agreed to deposition and
(i) deposition would result in 10+ depositions being taken
o

(ii) deponent has already been deposed in the case

(iii) party seeks to take deposition before the time specified in Rule 26(d)
(before parties have had 26(f) conference)
NOTE: Attorneys have lots of power in deposition process
o Think back to private attorneys general idea
o Attorneys have power to summon someone and make them answer questions under
oath. Thats a lot of power.

FRCP 30(c) Examination & Cross-Examination

30(c)(1) examination and cross-exam proceeds as they would at trial under Federal Rules
of Evidence; put deponent under oath, testimony recorded by officer
30(c)(2) objections to the examination are noted on the record but the examination still
proceeds. Person may instruct deponent not to answer only when necessary to preserve a
privilege, etc.
30(c)(3) party may serve written questions in sealed envelope, which is delivered to
officer, record deponents answers verbatim

FRCP 30(d) Duration; Sanction; Motion to Terminate or Limit

30(d)(1) Deposition limited to 1 day of 7 hours. Court must allow additional time
consistent with Rule 26(b)(2) if needed to fairly examine deponent or if deponent impedes
or delays the examination
30(d)(2) Court may impose sanction (reasonable expenses and attorneys fees incurred
by any party) on person who impedes or delays fair examination of deponent
30(d)(3)
o (A) - Deponent or party can move to terminate deposition at any time on the ground
its being conducted in bad faith or in a manner that unreasonably annoys,
embarrasses or oppresses the deponent or party.
o (B) Court can order deposition be terminated or limit its scope

FRCP 31-32 (skim)

31 deposition by written questions (governed by many of the same requirements for oral
depositions)
32- all or part of deposition can be used against a party at hearing or trial so long as that
party had reasonable notice of the deposition or was present or represented at taking of
deposition and the deposition is used consistent with Fed Rules of Evidence

FRCP 33 Interrogatories

NOTE:
o Party sends opposing party list of questions
o Answering party must write down responses, including objections
o Answers have to be made under oath
o Limit of 25 questions
33(a)(1) Number
o No more than 25 written interrogatories served on another party.

Court can grant leave to serve additional interrogatories consistent with Rule
26(b)(2)
33(a)(2) Scope
o Can relate to any matter that would be inquired into under 26(b)
o Can ask for opinion or contention relating to fact or application of law to fact
o But Court can order that interrogatory doesnt have to be answered until discovery
is complete
NOTE: Compare deposition and interrogatory
Deposition is about uncovering facts.
Interrogatory point is not just to uncover facts, but to get clarity on
the application of law to fact, to isolate the issues in dispute
o Ex. As part of your claim, are you contending my client was
negligent at this time?
NOTE: TIMING Courts have struggled with when is the better time to allow
parties to serve potential interrogatories on each other?
Beginning of discovery
o Could narrow the issues better, simplifying the case.
o Cost-effective parties only have to produce these certain
documents
After discovery
o May not know what the issues are or what my position will
be until I have discovery
o New facts come to light that change my opinion of the case.
33(b) Answers and Objections
o (1) Must be answered by party to whom directed
o (2) Responding party must serve answers and any objections within 30 days after
being served with interrogatory
o (3) Each interrogatory must be answered separately and fully in writing under
oath
o (4) Grounds for objecting to interrogatory must be stated with specificity
o (5) Person who makes answers must sign them
NOTE:
o 33(d) Business Records -- Cannot respond to interrogatory simply by saying, here
is where documents are, come and get it.
Have to specify the nature and organization of the records so other party can
locate and identify the records as readily as the responding party could
You can only use this option when the burden of extracting the information
is substantially the same for both parties.
And there are reasons why you dont want other people going through your
stuff see your notes on why copying and production is the norm.
NOTE: Rule 37 sanctions for failure to comply
o

NOTE: Most people wont say something incriminating, so interrogatory isnt so great on its
own. Interrogatory may be most effective in getting background information
names/addresses of witnesses, etc.
o Good use of interrogatory you want to depose whoever kept records of something,
but you dont know who that is. Use interrogatories against other side to learn who
has this information.

FRCP 34 Producing Documents

NOTE: The Rule is worded so that the scope of whats included is very broad.
34(a)
o (1) party may serve on any other party a request to produce, or permit requesting
party to inspect, copy, test
(A) - any designated documents or ESI
(B) any designated tangible things
NOTE: Non-party witnesses dont have to provide information. Only
way to force them to give testimony - subpoenaing for a deposition.
But then they would be annoyed and predisposed against the
deposing party
o (2) request permit entry onto designated land or property of responding party so
that requesting party can inspect, test any designated object
o NOTE: How come copying and production is the paradigm, not allowing opponent
inspection?
Dont want disruption to business of your office
Want to know what they saw, didnt see this is valuable information for
trial.
They may lose or tamper with originals
Dont want them to know certain info (trade secrets) or something which
they didnt ask for which could then be used against you.
o NOTE: Bad incentives
Document discovery is subject to abuse
Parties construe request too narrowly (as to make request meaningless)
Or parties construe request too broadly to hand over mountain of
documents needle in a haystack situation
34(b)
o (1) Contents of request
(A) describe each item to be inspected with reasonable particularity
(B) must specify reasonable place, time, manner for inspection
o (2)
(A) - Party to whom request is made must respond in writing within 30 days
of being served
(B) must permit or object to each request
(C) must point out specific part objected to, then permit rest

(E)(i) Party must produce documents as they are kept in the usual course
of business or must organize and label them to correspond to categories in
the request

34(c)
o Nonparties can be compelled to produce documents, other tangibles and to permit
inspection.

FRCP 35(a) Physical and Mental Examinations

(1) Court may order party whose physical or mental condition in controversy to submit to
examination by licensed examiner.
(2)
o (A) Order may be made only on motion for good cause and no notice to all parties
and person to be examined
o (B) must specify time, place, manner, conditions of examination, and person who
will perform it
Note
o Must have good cause because judges are wary of its intrusiveness
o The only one where prior approval by court is necessary

FRCP 36 Requests for Admission

36(a) Scope and Procedure
36(a)(1) Party can serve another party with a request to admit the truth of a matter
within scope of FRCP 26(b)(1) relating to:
o (A) facts, application of law to fact, or opinions about either
o (B) genuineness of any described documents
o NOTE: NOT limited to statements of fact
Party may ask for opposing partys admission of legal opinion, just like with
interrogatories.
36(a)(3) If no response to request within 30 days of being served, the matter is admitted
36(a)(4)
o If a matter is not admitted, answer needs to specifically deny it, or state in detail
why the answering party cant admit or deny it
NOTE: Need to admit, deny or explain why you can do neither. On exam, find
information from fact pattern to suggest whether party should admit, deny
or do neither.
o Must fairly respond to substance of the matter
o If denying only part of an answer, specify the party admitted and deny the rest
36(a)(5) Grounds for objection must be stated
36(a)(6) Motions for insufficient answer court may order that matter is admitted or
that amended answer be served

36(b) Effect of admission; Withdrawing and amending

Admission is established unless under Rule 16(e) court permits withdrawal or amendment
if it promotes presentation of the merits of action and doesnt prejudice the requesting
party
NOTE: An admission is only used as an admission for the purposes of the proceeding, and
not admission that can be used against the party in another proceeding.
o A party decides its not worth fighting over a certain issue, so admits it because
litigation is expensive. Opponent then games system. You admitted something in
case over 100 dollars, so Ill use what you admitted in a suit for 100 million dollars.

FRCP 26(a)(2) Disclosure of Expert Testimony

26(a)(2)(A) Party must disclose to other parties the identity of any witness it may use at
trial to present evidence
26(a)(2)(B) This disclosure accompanied by written report signed and prepared by
witness if witness is specifically employed to provide expert testimony. Report contains
o (i) complete statement of all opinions witness will express and the basis for them
o (ii) facts of data witness considered in forming his opinions
o (iii) any exhibits
o (iv) witness qualifications
o (v) list of all other cases where witness testified
o (vi) statement of compensation to be paid for study and testimony
26(a)(2)(C) Witnesses who dont provide written report
26(a)(2)(D) Must make these disclosures
o (i) at least 90 days before trial date
o (ii) if evidence is only for rebutting evidence on the same subject matter identified
by other party, then within 30 days after other partys disclosure.

FRCP 37 Failures to Make Disclosures or to Cooperate with Discovery; Sanctions

37(a) Motion to Compel or Disclose
37(a)(1) Party may move for order compelling disclosure or discovery. Motion must
show that movant attempted in good faith to confer with other party on discovery.
o NOTE: Before motion to compel, parties have to attempt to work it out on their own,
and need to show that to judge.
37(a)(2) Motion to compel must be made in appropriate court, where the action is
pending
37(a)(3) Specific motions
o (A) Compel disclosure if party fails to make disclosure required under 26(a)
o (B) Compel discovery response
(i) if deponent fails to answer question asked under Rule 30 or 31
(ii) - corporation or other entity fails to make designation under deposition
rules 30(b)(6) or 31(a)(4)
(iii) failure to answer interrogatory submitted under Rule 33

(iv) failure to respond to inspection request under Rule 34

37(a)(4) Evasive or incomplete disclosure = treated as failure to disclose or respond
37(a)(5) Payment of expenses done via winner/loser
o If motion granted, party whose conduct necessitated the motion must pay movants
reasonable expenses, including attorneys fees. Exceptions exist.

37(b) Failure to Comply with a Court Order

37(b)(1) Failure of deponent to answer question treated as contempt of court
37(b)(2) Sanctions
o (A) Court may issue the following orders
(i) The matters laid out in the discovery order are taken as winning claims
for the other party
(ii) prohibit disobedient party from supporting/opposing certain claims or
offenses or from introducing certain matters into evidence
(iii) striking pleadings in whole or in part
(iv) halting further proceedings until the order is obeyed
(v) dismissing action or proceeding in whole or in part
(vi) default judgment against disobedient party
(vii) treat failure to comply as contempt of court, except for order to
submit to mental or physical exam (Rule 35(a))
o (B) if fail to produce a person for medical or physical examination, court can order
any of the seven orders in 37(b)(2)(A)(i-vii)
o (C) in addition to sanctions above, court must order disobedient party to pay any
reasonable expenses, including attorneys fees caused by the disobedient partys
failure to comply

NOTE: Difference in when 37(a) and 37(b) arises

o Part A
You have to ask for something first, and demonstrate your good faith effort
to work something out.
You cant file motion to compel right away
o Part B
Penalties
If other side cant justify their noncompliance, that side has to pay attorneys
fees incurred in making motion.
NOTE: Why might this loser pays rule be appropriate here but not in other
sections of the Rules

37(c) Failure to Disclose, Supplement or Admit

(1) If party fails to provide information or identify witness as required under 26(a) and
26(e), they cant use that information or witness to supply evidence on a motion, at hearing,
or at trial, unless failure was justified or harmless. Additional sanctions can be applied

(A) payment of reasonable expenses caused by the failure, including attorneys

fees
o (B) inform jury of partys failure
o (C) may impose other appropriate sanctions, including any of the seven sanctions
in 37(b)(2)(A)
(2) If party fails to admit whats requested under Rule 36, and requesting party later proves
the document was genuine or the matter was true, requesting party can move for that party
who failed to admit to pay for reasonable expenses, unless
o (A) request was objectionable under Rule 36(a)
o (B) admission was not important to case
o (C) - party had reasonable belief that they would prevail on the matter
o (D) other good reason to fail to admit
37(d) Failure to Attend Own Deposition, Serve Answers to Interrogatories, Respond to Request
for Inspection
(1)(A) Youre subject to standard Rule 37(b)(2)(A) sanctions if you
o (i) fail to appear for your own deposition
o (ii) fail to serve answers/objections/written response when served with
interrogatories, fail to respond to request for inspection
37(e) Failure to Participate in Framing Discovery Plan
If fail to participate in good faith in framing discovery plan as required by Rule 26(f), court
can, after giving opportunity to be heard, require that party or attorney to pay reasonable
expenses, including attorneys fees, caused by the failure
o

Exceptions to Discovery
FRCP 26(b)(3) Work-Product and Trial Preparation Materials

(A) Party cant discover documents and tangible things prepared in advance of litigation or
for trial by another party. Exceptions, subject to 26(b)(4)
o (i) Materials are otherwise discoverable under Rule 26(b)(1)
o (ii) party shows it has substantial need and cant otherwise acquire that material
without undue hardship
o NOTE: In anticipation of litigation heavily debated phrase
Not included
Documents prepared in regular course of business, for general
record-keeping purposes
Documents prepared to AVOID litigation
Document created for X purpose, later found to be useful to litigation
Documents created when neither party contemplated litigation
Its possible that materials can be drafted in preparation for litigation even if
no suit has been filed yet. If its clear the suit is imminent and the documents
are for use in the case, privilege will apply.

NOTE: if opposing party shows substantial need, the work product may not be
shielded. Examples:
Witnesses arent available, lawyer might need to provide their account of
deposition testimony
CASE: Snead v. American Export (illustrates what circumstances are
enough to create a sufficient showing of necessity to overcome workproduct protection under 26(b)(3)
o Party A cant ask for Party Bs surveillance videotape. That is
not a substantial need, unless in those times where theres a
major discrepancy between what testimony the Party A will
give and what the film seems to portray
o But whenever a document or other item is to be introduced,
isnt there a need for discovery to see if the item has been
forged, distorted, altered?
o NOTE: Purposes
Efficiency: we want lawyers to put stuff in writing, which is necessary for
good, efficient lawyering
Client service
o NOTE: 26(b)(3) only partially codifies Hickman, since it protects only documents
and tangible things. But an attorney could always say they are relying the common
law protection of Hickman itself.
(B) if court orders discovery of these materials, must protect against disclosure of the
mental impressions, conclusions, opinions, legal theories of the partys attorney
o

CASE: Hickman v. Taylor

o Illustrates tension between full information disclosure (theoretically just outcome)
and client service/good representation
Note attorney-client privilege doesnt apply to work-product; a/c privilege
is only direct interactions between attorney and client, not between attorney
and deponent, etc.
They are ordinary business records and, as such, are discoverable.
o Plaintiff: party with lots of attorneys doing investigations has advantage over
individual with no attorney
Court No. Discovery is a two-street.
o Depositions are relevant material, and not privileged (atty communicates with third
party, not with client)
o Court: this work product based on sources available to both parties that is not
privileged (its nonprivileged and relevant) is nevertheless not discoverable because
it goes against public policy to include them in discovery
lawyers would be demoralized.
Removes incentives for attorneys to work hard if they know they
shouldnt commit anything to paper
Creates incentives for lawyers to deceive one another

Its an invasion of attorney privacy

Lawyers would have to be witnesses in their own cases if their
statements contradict other testimony from the same witness
If this sort of material discoverable, lawyers would not be methodical in
developing facts of case.
NOTE: Tension between Hickman and Rule 26(b)
Concern of Rule 26(b) is not that lawyers are demoralized but that
parties are demoralized.
Hickman literal reading of Rules = the information is discoverable.
But tradition, custom, practice of discovery so far says the
information wouldnt be discoverable.
Court carves out exceptions
If you have substantial need, cant get it any other way, you can access
relevant and nonprivileged FACTS, not memos or mental impressions
This clashes a bit with Rule 26
Court is saying its not discoverable if its outside Rule 26, but if you
need it its discoverable.
NOTE: Even a request for a memo which contains only facts of the case, no legal
analysis, can still show some sort of logic or strategy in terms of how its organized
and whats included.
NOTE: Work product is generally privileged, but legal theories are not. Opposing
party can request through interrogatories or requests for admission.

FRCP 26 (b)(4) Scope of Discovery for Expert Witnesses

(A) Deposition of expert - Party can depose any expert for other side whose opinions may
be presented at trial
(B) Draft reports protected
o Drafts of any report or disclosure required under Rule 26(a)(2) is protected
o NOTE: 26(a)(2)(B) experts must prepare written report and turn it over to
opposing side.
Why do we protect the drafts of these reports?
Experts have a certain need for sloppiness you want to be afforded
a space in which to brainstorm
There is a way youre phrasing something in the draft that shows
mental impressions, is thus covered under work product
Reason not to protect drafts:
Gives you an ability to take back something that is counterargument
to your case
(C) Communications between attorney and expert protected
o Exceptions:
(i) theyre about compensation
(ii) facts or data the attorney provided to expert, and that expert considered
in forming his opinion

(iii) assumptions the attorney provided and that expert relied on in forming
his opinion
(D) Expert employed only for trial prep (not neutral experts, but experts employed by one
side to support its side)
o Cant discover facts or opinions held by expert retained to help prepare for trial and
who isnt expected to be called as a witness. Exceptions:
(i) as provided in Rule 35(b) medical/physical exams
(ii) exceptional circumstances where its impracticable for requesting party
to obtain facts/opinion on same subject by other means.
o NOTE:
The expert has to have been retained in anticipation of litigation
Any facts that the expert knows CAN be discovered. The facts known only
protects facts known though preparing the case, not facts known
independent of the litigation events.
o NOTE: Distinction between normal witnesses and expert witnesses
Normal witnesses clear up the facts
Expert witnesses help us interpret the facts; provide information that is
relevant to drawing a legal conclusion
o NOTE: Similar to the rationale for work-product protection
Nontestifying experts are fully involved in preparing case for trial
Educating counsel, developing theories, producing exhibits,
preparing witnesses. Allowing this stuff to be discoverable would
dampen open exchange between counsel and his own experts, which
would be bad for quality deliberation.
(E) Party seeking discovery pays expert (unless manifest injustice results)
NOTE: This rule added to reduce complicated pre-trial dance of having two separate experts
consulting expert and testifying expert
Testifying expert keep him clean and dont talk to him, because whatever
he knows is discoverable
Consulting expert be fully candid and work with him a lot, because not
discoverable.

FRCP 26 (b)(5) Claiming Privilege or Protecting Trial-Preparation Materials

26(b)(5)(A) If a party withholds information thats otherwise discoverable by claiming

the information is privileged or protected because its trial-prep material, the party has to
o (i) expressly make the claim
o (ii) describe the nature of the documents and do so, without revealing the
information that is privileged or protected, in a way that enables other parties to
assess the claim
26(b)(5)(B) If information produced in discovery is privileged or protected, the party
making that claim may notify any party that received the information, who must then
promptly return, sequester or destroy that information; cant use or disclose information
until the claim is resolved.Producing party has to preserve the information until claim is
resolved.

Attorney-Client Privilege and Waiver

NOTE: Attorney client privilege cant be taken away, regardless of opposing partys need.
Stronger than work-product.
o NOTE: But it can be lost easily! If privileged material divulged to a third party, that
ends privilege
o NOTE: Privilege protects statements, but not facts. Facts are fair game for discovery
Also, its not possible for a client to say a bunch of damaging things to
attorney and then those statements are protected forever.
Attorney-client privilege protects communication between attorney and
client. The privilege does NOT protect a party from responding to discovery
of facts about the case just because the party told those facts to the attorney.
And the attorney cannot file answers to interrogatories which he knows to
be untrue thats perjury.
NOTE: NOT codified in FRCP
NOTE: In state courts, attorney-client privilege is creation of state law, not federal law, so
Upjohn decision isnt binding authority
NOTE: Purpose courts feel full disclosure is necessary to good legal service, which is
necessary for efficient legal system.
NOTE: 4 elements (p. 908)
o Holder of privilege is client or potential client
Potential client in order to see if you need representation, you need to
divulge to the attorney certain facts. You have to say what you problem is in
the first place. This disclosure is protected.
o As an attorney
Communication must be made to an attorney or his subordinate, and must
be acting as an attorney.
o Basically, the communication must be made confidentially
Without presence of strangers, etc.
We dont care about protecting communication that is already public
o Privilege was claimed, and not waived
Cant automatically be applied. Attorney client privilege is an exception to
discovery, and we dont want exceptions to discovery to be too broad.

CASE: Upjohn v. United States what attorney client privilege looks like for a corporation

Corporations can be client. Legal question that remains WHICH human being within the
corporation counts as a client and is therefore protected by attorney-client privilege?
District Courts control-group test
o person who would be responding to and acting upon the legal advice given
Court rejects the test
o Its difficult to know who counts or doesnt count as part of the control group
o Overlooks the dual purposes of attorney-client privilege
Clients need facts from lawyers

But lawyers need facts from client

And facts often come from lower-level people
Court is being hypocritical
o uncertain privilege is little better than no privilege at all p. 911
o Criticizes appellate court is not setting down a clear rule, but doesnt replace with
anything more clear
NOTE:
o If employee speaks to corporations attorney, and doesnt care about corporations
liability and just asks about employees own concerns, how far must corporations
attorney go to make clear the nature of their relationship, and to warn employee of
risks of using counsel for the corporation as employees personal counsel
Or employee is doing something that goes against the corporations policy or
interests
There may be things outside the scope of your duties for which
corporation is liable (taking joy ride in company car)
Maybe attorney should really let employees know, Look, Im the
corporations attorney, not the employees attorney.
NOTE: Constitution is source of several other privileges
o Husband-wife communication
o Priest-penitent
o Physician-patient
CASE: Excel Golf v. MacNeill Engineering consequences of voluntarily but inadvertently
revealing privileged information

Old common law rule on this strict liability. If you disclose, no matter how careful you
tried to prevent, thats too bad. If you waive one piece of document, you waived all pieces.
Why did common law courts do this?
o Create incentives to be as careful as possible
o Easy to administer no need to conduct findings to determine if person took
precautions
Not a waiver (under 502(B))
o It was inadvertent
o Reasonable steps taken to prevent disclosure
So, is there evidence the person did checks, numbered the pages
o Reasonable, prompt steps to rectify error after disclosure occurred.
P tries to use clawback agreement (where party asks for information back, opposing party
grants request)
o NOTE: Even if you get the document back, does it matter? The other side has read
the information, can act on that information (know which witnesses to seek out)
o NOTE: What about suit where you have large corporation (large legal team) and one
plaintiff (not a lot of attorneys with manpower to go through documents)

ADJUDICATION WITHOUT TRIAL

Settlement

Looming over every stage of trial. Can happen at any time, at places you may not expect
(before filing, after trial, during appeal)
o Filing motion to dismiss discovery summary judgment trial appeal
Why settle? (note - would have to be advantageous to both parties, not just one party)
o COSTS
Both sides have to pay to litigate
Time
Productivity employees spend time dealing with litigation instead of doing
other things
o Protect interests other than winning
Trade secrets, or secret is embarrassing
Dont want to encourage future litigation case goes to trial increased
publicity other people start suing you
Avoid stigma of litigation
Repeat play dont want to sour relationship if you have to deal with that
party again
o Parties are risk-averse, dont want to take chance of winning or losing
o Asymmetric information
You know you have evidence against you that is very strong, and you know
itll come out in discovery. Dont want other party to learn that information,
because it might lead them to not want to settle and to go ahead with trial in
hope of obtaining larger damages.
o Foregone conclusion parties are in agreement about the outcome of case and just
want to get it over with.
Why not settle?
o Divergent expectations
Parties have different beliefs about how likely they are to win. Both parties
tend to be optimistic about their chances
o Impact litigation
Case has broader importance for larger society
o Protecting image
Settlement makes you look guilty
o Being pissed off
Parties are human beings, may not be acting fully rationally. They want to
win, even if its costing them
o Repeat play cuts in other direction
Dont want to settle because this encourages future litigation
You want to invest in litigation, because even though its expensive, cheaper
than having to settle an onslaught of lawsuits brought

Condition thatd have to be met for this to be true For a plaintiff,

the expected returns from litigation are greater than expected cost
(then this is an undeterrable plaintiff)
NOTE: Maybe this is genius of FRCP prevents games from being played by
allowing liberal discovery

Summary Judgment
FRCP 56 Summary Judgment

For exam, a good exercise imagine youre an advocate, and how would you argue the
motion should or should not be granted.
NOTE: Purpose reduce delay and expense resulting from frivolous defenses
NOTE: Summary judgment is not a substitute for a trial on the facts of a case. SJ is essentially
a critical look at what occurred in discovery to see if a trial is warranted.
NOTE: Compare with motion to dismiss
o Main difference summary judgment has discovery, motion to dismiss does not
At pleading stage, dont have discovery yet. Still have hope other facts will
come out
At summary judgment stage, discovery is closed. Youve looked and looked,
and if 50% chance is all you have, youre done.
o Summary judgment: The first opportunity to introduce new information
12(b)(6) motion cannot take on additional facts not mentioned in the
complaint
o Summary judgment: either party can bring motion for sum judg
Motion to dismiss only the defending party.
NOTE: Compare with motion for judgment as a matter of law
o Both can occur before jury verdict (if 50(a))
o Standards are approximately same whether the party opposing the motion has
enough evidence so that a reasonable factfinder could find in her favor
56 no genuine issue of material fact
50 no legally sufficient evidentiary basis for a reasonable jury to find for
non-moving party
When to use one or the other
o Summary judgment complex case with expensive discovery
costs
NOTE: What is being decided in summary judgment?
o Trial goal is to resolve factual disputes
o Summary judgment not meant to try the facts, but to determine whether there are
genuinely contested issues of material fact. So the nonmoving partys burden is to
show he has legally competent evidence upon which a reasonable jury could resolve
the factual issues in his favor.
material a fact that is relevant, bears on, whether a claim will fail or
succeed. A fact that tips the balance one way or the other
genuine:

Must have information to support their side

Both parties must have evidence
So, we look at facts. Facts are undisputed. Given the undisputed facts, it must
be the case that movant wins.
In order for non-movant to defeat motion
Pros/cons of summary judgment
o Con:
Not allowing jury trial is unconstitutional
o Pro:
If moving party deserves what theyre asking for
slightest doubt standard is too high can create slightest doubt as to
anything
Relate notice pleading to summary judgment
o Judge Clark (founding father of FRCP, champion of notice pleading, favors summary
judgment)
o More liberal notice pleading standards we dont cut cases off at outset, were
letting people through, which gives everyone the opportunity for discovery
o Downside: a lot of weak cases get all the way through discovery. To make up for that
downside, we want to be able to then cut off cases at summary judgment stage.

(a) Motion for Summary Judgment

Party moves for summary judgment. Judge shall grant if movant shows theres no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law
(b) Timing
At any time until 30 days after the close of discovery
(c) Procedures How to support motion for SJ
o (1) Party asserting that a fact cant be or is genuinely disputed must support the
assertion by
(A) citing particular parts of materials on record (documents, ESI,
depositions, affidavits)
(B) showing that the materials cited dont establish an actual dispute, or that
the opposing party cant produce evidence to support the fact.
o (2) - Can argue a fact isnt supported by admissible evidence
o (3) - Court only required to consider the cited materials, but can consider other
materials in the record
o (4) affidavits/declarations have to be made on personal knowledge set out in facts
that would be admissible in evidence.
(d) When Facts Unavailable to Nonmovant
If nonmovant shows by affidavit or declaration that it cant present facts essential to justify
its opposition, court may
o (1) defer considering motion or deny motion
o (2) allow time to obtain affidavits or declarations or to take discovery
o (3) issue any other appropriate order

(e) Failing to Property Support or Address a Fact

If party fails to properly support an assertion of fact or to address another partys assertion
of fact as required by 56(c), the court may :
o (1) give opportunity to properly support or address the fact
o (2) consider the fact undisputed for purposes of the motion
o (3) grant SJ if motion and supporting materials, including the undisputed facts show
the movant is entitled to it
NOTE: Party cannot avoid summary judgment by just making contrary
allegations to the complaint. But if you raise an issue of fact, and the
evidence of each party contradicts each other, then you have a triable issue
of fact, and it should go to jury, and summary judgment should be denied.
NOTE: You cannot deny summary judgment just because theres a
disagreement about a fact. The disagreement must be about a fact thats
relevant to the case.
(f) Judgment Independent of the Motion
Court can grant SJ on its own after giving notice + reasonable time to respond
o (1) grant summary judgment for a nonmovant
o (2) grant motion on grounds not raised by either party
o (3) consider summary judgment on its own after identifying for the parties material
facts that may not be genuinely in dispute
(h) Affidavit or Declaration Submitted in Bad Faith
If court concludes that an affidavit or declaration submitted in bad faith or to delay, court
can, after notice and reasonable time to respond, order submitting party to pay other
partys reasonable expenses, including attorneys fees. Offending party can also be held in
contempt, subjected to other sanctions.
THE CELOTEX TRILOGY spectrum of summary judgment
CASE: Celotex v. Catrett (1986)

If moving party doesnt have burden of proof, they dont have to submit affirmative
evidence that negates non-movants claim.
Burden of proof
o Burden of production
o Burden of persuasion
NOTE: Make sure you note who has the burden of production and who has
burden of persuasion
Here, party moving for judgment is not the party with the burden
Brennan: outlines different ways a party can do this
o Basically
In case of plaintiff, straightforward. P presents evidence, and burden falls on
D to respond

In case of D, D can make affirmative defense, or, like in Celotex, argue that P
cant make Ps own case
Burden of establishing absence of genuine issue is on moving party
Burden of production If moving party satisfies its burden of production,
that burden shifts to nonmovant
Burden of persuasion ultimate burden of persuasion always remains on
moving party
NOTE: Party who carries this burden loses given a 50/50 balance of
the evidence
NOTE: If party with burden of proof does nothing, they lose. If they
only meet burden of production, they lose.

If moving party has burden of persuasion at trial

need to affirmatively support motion with credible evidence that would
entitle it to directed verdict
this affirmative showing shifts burden of production to nonmovant
then, nonmovant needs to submit enough evidentiary material to
prove existence of genuine issue for trial
or submit affidavits requesting additional time for discovery

If nonmoving party has burden of persuasion at trial

Movant has 2 options for summary judgment
Submit affirmative evidence that negates essential element of
nonmovants claim
Demonstrate that nonmovants evidence is insufficient.
o If party decides to do this second option, to say that the
nonmoving party has no evidence, need to affirmatively
show the absence of evidence on the record!!! You have to
take the time to address the evidence and show why it fails
Why Brennans concern: if we allow movant to
immediately shift burden onto nonmovant, concern
that you may be using summary judgment as a way to
harass nonmovant
o Which you do through Rule 56(c) procedures for SJ
NOTE: Brennan and Rehnquist agree on what the rules are. Brennan is just mad that
Celotex said there was no evidence instead of attacking the adequacy of evidence
that was in fact on the record, which meant Celotex failed to meet its burden of
production, rendering SJ improper.
NOTE: The Celotex trilogy represents shift in Courts willingness to endorse
summary judgment
Could be read as substantially lowering the requirements on the moving
party if moving party does not bear burden of production

BUT empirical data shows no real change in summary judgment granted

after Celotex
Court also does not seem to be changing the requirements of summary
judgment. Has to do more with the spirit of how Court treats summary
judgment than anything
Rehnquist kind of echoes Judge Frank notice pleading allows us to
stricter at the summary judgment stage to weed out weak cases.
Is summary judgment inappropriate for really complex cases, like antitrust
cases?
CASE: Anderson v. Liberty Lobby (1986)

Standard of proof for proving malice

o clear and convincing standard, which is higher than usual civil case standard
preponderance of the evidence
Standard matters because
o you cant ask jury to find for either P or D without giving some sort of benchmark as
to what standards govern its decision and within what boundaries its decision has
to fall
BUT upholding the clear and convincing standard doesnt mean were trying
to denigrate role of jury or authorize trial by affidavit
We still need jury to make credibility determinations, weigh the evidence,
draw legitimate inferences. This is jury function, not judge function. And
evidence of nonmovant is to be believed, all justifiable inferences drawn in
his favor. So if decision of case depends on these things, case should proceed
to trial and youre not entitled to bring summary judgment

CASE: Matshushita v. Zenith (1986)

Case isnt so much about civil procedure as it is about antitrust law

o In these cases, the line between procedural standard and substantive law is blurred
o Not clear we can apply Matsushita to non-antitrust law
o If case were tried today, probably wouldnt survive 12(b)(6)
Court is skeptical about claim because the point of antitrust law is to have
lower prices. Japanese manufacturers were settling low prices (AT&T in
Twombly prices high)
Parallel to Twombly
o if their conduct is consistent with equally plausible explanations
NOTE: Point for debate shouldnt the existence of roughly equivalent explanations for the
same thing necessitate a jury trial?
Casebook hypo p. 986

Grant summary judgment: If evidence is exactly symmetrical on two sides, we know we

cant get above 50% for either side. As a matter of law, the plaintiff cant meet the

preponderance standard, and it wouldnt make sense to send to jury when theres no factual
dispute for them to figure out.
Deny summary judgment: Two pieces of evidence where jury might find one piece more
compelling than the other. Its possible to weigh the two pieces of evidence.

CASE: Scott v. Harris

Tape presents evidence of negligent driving

Court: So theres no genuine dispute if we can just watch the tape. Facts are to be viewed in
light most favorable to nonmoving party only if theres no genuine dispute as to those facts.
o NOTE: Light most favorable to nonmoving party asking, in the worst case
scenario, does moving party still win.
o NOTE: Prof: Court is saying theres no way to draw inferences. This is not coherent
with definition of summary judgment. If there is no genuine dispute of facts, then
were done. Summary judgment is granted.
Only way to make sense of what court says: That no reasonable juror could
conclude driving was safe. This was the only reasonable inference that could
be drawn.
o NOTE: Its still debatable whether there wasnt a genuine dispute. Video doesnt
bear tablets from Mt. Sinai saying, this driving was dangerous. The facts that matter
in this case are facts that are drawn inferentially from other facts in the case.

Voluntary Dismissal, DWP, Default Judgment

FRCP 41 Dismissal of Actions

Voluntary dismissal allows the moving party to extricate himself from the lawsuit without
affecting his legal rights, before the courts and the parties have expended a lot of resources
o BUT because voluntary dismissal can be used to harass defendants, if party attempts
voluntary dismissal a second time on the same cause of action, its viewed as being
adjudication on the merits.
(a) Voluntary Dismissal
(1) By the plaintiff
o (A) Plaintiff may dismiss an action without a court order by filing:
(i) notice of dismissal before opposing party serves either an answer [to the
complaint] or a motion for summary judgment; or
(ii) parties just all agree to voluntarily dismiss
NOTE: Maybe there are new developments in discovery, or parties
have reconsidered their desire to litigate based on costs
(so if its before an answer, its without court order, and its without
prejudice; if its after opponent has served an answer, its by court order)
NOTE: Consequences of dismissed without prejudice
o Not dismissed on merits
o Just means case is over. You can bring the case again

(B) Unless notice or stipulation states otherwise, dismissal is without prejudice. But
if plaintiff previously dismissed any action based on the same claim, a notice of
dismissal operates as an adjudication on the merits.
NOTE: When might parties agree to dismiss with prejudice?
D has agreed to pay, so you want it dismissed with prejudice
NOTE: Plaintiff gets only one bite at the apple
Dont want P to use voluntary dismissal as vehicle for harassment
(ex. P goes through trial, and just as it looks like D might beat P,
voluntarily dismiss and then bring suit all over again)
(2) Except for voluntary plaintiff dismissal Rule 41(a)(1), action can be dismissed by court
order only on terms court considers proper
o If D has pleaded counterclaim before being served with Ps motion to dismiss, action
may be dismissed over the Ds objection only if counterclaim can remain pending for
independent adjudication
o Unless the order says otherwise, dismissal under this paragraph is without
prejudice.
o

CASE: McCants and Wojtas p. 988

o Fact pattern identical: P files, D answers. D tries to get case dismissed based on
statute of limitations, because P didnt file before SOL expired. P says they want to
voluntarily dismiss. McCants court allows. Wojtas court does not.
o How to reconcile? They came out different ways, but doesnt mean one was wrongly
decided.
Bottom line: Courts have lots of discretion. Can grant voluntary dismissal on
whatever terms the court deems proper (whether judge abused discretion in
granting voluntary dismissal when plain legal prejudice to defendant would
result, whether plaintiff failed to respond at all to statute of limitations
argument)

(b) Involuntary Dismissal

D may move to dismiss the action or any claim if P fails to prosecute (fails to comply with
these rules or a court order)
Unless dismissal order says otherwise, a dismissal under this sectionoperates as
adjudication on the merits.
o NOTE: Basically, when P doesnt proceed with due diligence
But courts will also consider whether or not there was prejudice to
defendant
o NOTE: Whats the point of having dismissal for failure to prosecute if plaintiff is
doing nothing and not consuming the courts resources?
P may still be continuing to harass D. D has this hanging over them. Possibly
expending resources to potentially defend itself.
o NOTE: Case (p. 922) where dismissal for failure to prosecute deemed improper,
despite 22-month delay, because parties were actively negotiating

If youre Ps attorney, you could let the court know you wont be hearing
from the parties for awhile so you dont have to go all the way to Appeals
Court to fix the mistake.
o NOTE: J.M. Cleminshaw case p. 991
Court is trying to say that if court has authority under 41(b) to dismiss the
action, it has implied authority to fashion less onerous sanctions
Logic - on the one hand, rule is very clear about what recourse D has.
Either dismiss or dont. On the other hand, fines on attorneys are
appropriate precisely because theres no other remedy. Dismissal is
too harsh a result in cases where the mistake was made by counsel,
not the client.
o BUT: Case: Link v. Wabash Railroad
Not an excuse that counsels bad conduct imposes
unjust penalty on the client. Petitioner voluntarily
chose this attorney, and cant avoid consequences of
that choice
(c) Dismissing a Counterclaim, Crossclaim, or Third Party Claim
Claimants voluntary dismissal under 41(a)(1)(A)(i) must be made
o (1) - before a responsive pleading is served, or
o (2) if there is no responsive pleading, before evidence is introduced at a hearing or
trial
(d) Costs of a Previously Dismissed Action
If P previously dismissed an action in any court and files an action based on or including the
same claim against same defendant, court may
o (1) - Order P to pay all or part of the costs of the previous action, and
o (2) - Stay the proceedings until P complies.

FRCP 54 Judgment; Costs

(a) Definition of Judgment; Form
Judgment = a decree and any order from which an appeal lies
(c) Demand for Judgment; Relief to be Granted
If default judgment, amount awarded must be what is demanded in the pleadings, not more.
o NOTE: Cant give P more than it requested, and cannot give P a different type of
relief than requested.
Every other final judgment should grant the relief to which each party is entitled, even if
party hasnt specifically demanded that relief in its pleadings.
o NOTE: Efficiency argument for limiting Ps relief to the amount asked for in Ps claim
Sometimes its best when defendant defaults. D decides, Im just going to
pay, let P have it.
But if you create uncertainty, makes that more difficult for D
If D is so agreeable, why didnt they settle?

D probably thought P not motivated enough to follow through with

the threat. When P does follow through, D decides to go ahead and
pay

FRCP 55 Default Judgment (when defendant doesnt answer, doesnt bother

defending the case)
(Its not true that each time you dont show up its default judgment. Distinction between when you
dont show up and its default judgment, and you show up and its not default judgment.) NOTE:
Default judgments are disfavored by the courts

(a) - When a party against whom judgment for affirmative relief is sought has failed to plead
or defend, and that failure is shown by affidavit, clerk must enter the partys default.
(b) - Entering a default judgment
o (1) By clerk If the plaintiffs claim for a sum is certain or can be made certain by
computation, and appearance has not been made, clerk has to enter judgment for
that amount
o (2) By the Court in all other cases, party has to apply to court for default judgment.
If the party against whom judgment is sought has appeared personally or by
a representative, that party has to be served with written notice of the
application at least 7 days before hearing. Court can conduct hearings any
time it needs to :
(A) Conduct an accounting
(B) Determine amount of damages
(C) Establish truth of any allegation
(D) Investigate any other matter
NOTE: If an appearance has been made, then hearing must be held to see if
Court should move into default judgment
(c) Court can set aside an entry of default for (1) good cause and (2) under Rule 60b

FRCP 60 Relief from a Judgment or Order

(a) Court can correct any mistake found in a judgment or order arising from clerical error,
oversight or omission. Can do so either on motion or on its own, with or without notice
(b) Grounds for relieving a party from final judgment
o (1) Mistake, inadvertence, surprise or excusable neglect
o (2) Newly discovered evidence that couldnt have been discovered with reasonable
diligence in time to move for new trial under Rule 59b
o (3) Fraud, misrepresentation, misconduct by opposing party
o (4) The judgment is void
o (5) Judgment has been satisfied or discharged, or its based on an earlier judgment
that was reversed or vacated, or applying it prospectively is no longer fair
o (6) Any other reason that justifies relief
(c) Timing and effect
(1) Motion under 60b must be made within a reasonable time no more than a year
after entry of judgment

(2) Motion doesnt affect judgments finality

(d) This motion doesnt limit courts power to
(1) Entertain an independent action to relieve party from judgment, order or
proceeding
(2) Grant relief to a defendant who wasnt notified of the action

TRIAL
Deciding between trial by judge or trial by jury: Tactical considerations
Institutional Considerations:

When plaintiff needs immediate financial relief

o Ex. Plaintiff in a personal-injury action is in serious financial difficulty would want
fastest litigation route possible.
o In many jurisdictions, theres a backlog in jury-trial calendar; long wait is inevitable,
while judge-trial calendar is current, and case can be heard in a few months
o ON the other hand, defendant who knows about plaintiffs situation may push for
jury trial, hoping to force P into a quick settlement favorable to D.
When time ameliorates the extent of Ps injuries
o Ex. Young girl is injured seriously, told she may not be able to have children; if case
is not heard for many years and she marries and is able to have family, shell be
awarded far less
o In case of serious injury, D has a lot to gain by delay, except when injuries are
degenerative
Cost
o Jury trials
Take considerably more time
Jurors have to be selected, instructed
Final arguments are longer
More witneses are called to testify
All of which results in high counsel fees
o Jury trial increases financial gamble by party who is uncertain as to his chances for
success
Complexity of the case
o ability of jurors to digest the evidence to be presented
Psychological considerations:

When is a jury more likely to give a favorable verdict than a judge?

Are there substantial differences between judge and jury attitudes on questions of liability?
On measuring damages?
Statistics indicate:

Plaintiffs win more often in trial before judges (65.1 %) than in trials before juries
(52.6%)
o But juries tend to award greater damages than do judges
Lawyer will consider the following factors in making the choice between judge and jury,
which of the two is most likely to be sympathetic to lawyers client:
o Nature of the case
o Characteristics of the parties/witnesses
o Passions that may surround the trial
o Types of jurors likely to be chosen
o Background and predilections of the trial judge, if the identity of the judge is known
in advance
Lawyers style
o An attorney who is effective in jury trial must be a bit of a showman
Must be entertaining enough to hold the jurys attention, establish rapport
with each juror, know how to excite their interest so that the presentation of
crucial testimony appears as a triumphant climax
o Lawyer in nonjury trial need not worry so much about form of presentation since
judge will pick out significant aspects of testimony even if they arent presented
dramatically.
Clues as to how the attorney is doing
o Rare in a jury case for attorney to have clear sense of success or failure in
convincing the jury
Can only follow planned presentation hope it succeeds
Sudden change in tactics or emphasis can confuse the jury
o IN nonjury case, judge, through statements during conferences, questions from the
bench, is constantly supplying lawyers with clues as to his or her impressions of the
case
An attuned attorney, if detects things arent going well, can change the focus
and salvage the case.
o

Right to a Jury Trial

Tension between the right to jury trial and the extent to which judge can take trial away
from the jury
Benefits of a jury
Representative cross-section of society?
o Justice Burger not representative of people who are educated or skilled, but of
people who have a lot of free time
o Not good to have everyday person serve, because legal issues are complex, case
may have some complicated details. Its hard enough for judge to follow all the
rules. Does jury even have a fighting chance? Jury instruction would have to go
on for hours, and a lot will get lost in translation.
A limitation on state power?
Makes judicial process more democratic?

Juries tend to get it right most of the time results dont diverge too often from how a
judge would decide.
Costs of jury trial
Cant decide issues piecemeal
o You get one trial, even if you have multiple claims. Is this the most efficient way
to deal with multiple claims?
Maybe unitary trial is better at allowing citizen participation,
spectatorship in the legal process
WHEN do you have right to a jury trial?
7th Amendment: Suits at common law where value of controversy exceeds 20 dollars
o NOTE: 7th Amendment isnt saying you have a right in all civil cases, but that you
have the right in common law cases, not equity cases.
o 7th Amendment date of ratification - 1791
Preserved = not creating something new. Whatever was there in 1791 is being
preserved?
Mixed remedies p. 1001
Cleanup doctrine if court of equity gets jurisdiction of a case with both legal and
equitable claims, equity court has jurisdiction and could decide incidental issues.
CASE: Curtis v. Loether

Modern cases show difficulty of deciding if theres right to jury trial

Ex. Breach of contract cases are easy, since break of contract existed in court of law in
1791. But what about claims based on a legal right, created by statute, that didnt exist
in 1791 but existed since then?
Right to jury trial goes beyond the specific common law actions available in 1791 (so its not
enough to say no jury trial because no right to jury trial for housing discrimination in 1791)
2-part test:
o Analogy to common law forms of action
o Form of relief sought
NOTE: It may confuse you that Court cites language of Title 7, when what
Congress says has nothing to do with the test of whether to get jury trial.
The test is the 7th Amendment. And court is, in the end, not saying what
Congress saying something is legal or equitable is the test. But should
policy considerations like delay and jury prejudice mean we should
defer to congressional judgments about what counts as law and what
counts as equity?
This was just to say just because its a claim based on a statute doesnt mean its not entitled
to jury trial: Whatever doubt may have existed should now be dispelled. The Seventh
Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon
demand, if the statute creates legal rights and remedies, enforceable in an action for
damages in the ordinary courts of law.
7th Amendment does apply to actions enforcing statutory rights

o
o

If the statute creates legal rights and remedies that are enforceable in an action for damages in the
ordinary courts of law, and jury trial on demand is required.
NLRB v. Jones & McLaughlin Steel Corp.
Upheld award of backpay without jury trial in an NLRB unfair labor practice proceeding, rejecting 7th
Am claim on the grounds that the case involved a statutory proceeding and not a common law suit
How this case is different
All this case meant 7th amendment isnt applicable to administrative proceedings, where jury
trial would be incompatible with the whole concept of administrative adjudication
But when Congress provides for enforcement of statutory rights in an ordinary civil action,
where theres no functional justification for denying the jury trial right, jury trial must be made
available.
We understand that jury prejudice might prevent victim from enjoying the verdict to which he or she is
entitled
But then the judge has power to direct a verdict, or issue judgment not withstanding the verdict,
or to grant new trial that provides substantial protection against the risk of racism
And, look, respondents might be right that having a jury trial exposes a broader segment
of the population to federal civil rights laws in action
None of the petitioners concerns are enough to overcome the clear command of the 7th Amendment
CASE: Tull v. United States

Rather than looking at a cause of action that didnt exist in 1791, looks at statute that didnt
exist in 1791. Seventh Amendment thus applies to statutes that didnt exist in 1791.
Allows for jury trial on the basis that nature of the relief sought is traditionally legal
No right to jury trial for punitive damages since Constitution is silent on this question
o Jury trial only for questions of liability
o Jurys determination of the amount of punitive damages doesnt involve the
factfinding function of jury defined by 7th Amendment
o Juries focus on compensatory damages, not punitive damages.
Also, second prong of two-part test is more important than first prong.

CASE: Chauffeurs Local 391 v. Terry

Majoritys test:
o Two-part test:
Find common law-analogous cause of action
First inquiry doesnt resolve whether claim is legal or equitable
because it is like a trustee breach of duty (E) but also like breach
of contract (CL)
There is no majority on board with this part of the test
7th Amendment goes to the ISSUE to be tried, which is legal in
this case, not the character of the overall action.
The form of relief sought

Legal relief compensatory damages. Court says theyre not

going so far as to say any monetary relief is legal. Exceptions to
when money damages are legal
o Restitutionary
(just know the line between restitutionary and
compensatory is not that clear)
P gains damages not based on plaintiffs loss but
on defendants gains, defendant made profits
through the civil wrong.
o Incidental to injunctive relief

Brennans test:
o Just focus on the remedy prong of the 2-part test
o Makes institutional competence argument Court had such a hard time finding
common law analogy
Kennedys test:
o Opposite of Brennan just keep the first part
o Less of a practicality argument. We should be faithful to the Constitution. Text of
Constitution says we have to preserve something and we cant preserve it unless
we look to history
This case illustrates how difficult a test this can be for the justices in determining right to jury
trial

FRCP 38 Right to a Jury Trial

38(a) Right to jury trial preserved by Seventh Amendment

o NOTE: Trial by jury a right protected by Constitution
38(b) On an issue triable by jury, in order to demand jury trial
o (1) need to serve the other party WITHIN 14 DAYS of last pleading and
o (2) filing in accordance with rule 5(d)
38(c) Must specify issues you want to be tried by jury. If you dont, it assumed you want
all the issues triable by jury to go to a jury. If a party has demanded jury trial on only some
of the issues, opposing party can demand jury trial on any or all of the other issues
38(d) You waive jury trial unless a demand is properly filed and served. A proper demand
can be withdrawn only if parties consent.
o NOTE: Two constraints on partys ability to choose jury
38(b) - If you dont make demand in timely fashion, you waive
38(d) Demand can be withdrawn only if parties consent
Why other party may be prejudiced. May have done all these
preparations that are jury-specific.
CASE: Edmonson v. Leesville Concrete (peremptory strikes for private litigants)
o Idea of a peremptory challenge can be for any reason, dont have to justify your
reason.

Batson case for government actor in criminal trials to strike jurors based on race
violates equal protection rights not of the parties but of the potential jurors who
were excluded
Note that equal protection clause of 14th is for states, doesnt apply to
federal.
Also note the 5th Amendment doesnt have explicit clause on this, just known
to have equal protection component.
o PRIVATE litigant cant use peremptory challenges to excluded jurors based on race
because jurors are acting in government role
Discrimination based on race is forbidden if done by government. But
Constitution doesnt forbid private person discriminating on basis of race.
Neither 5th nor 14th Amendment applies to private parties
We have statutes that say you cant do that Title 7 and Title 8. But
Congress power to pass those laws rooted in the Commerce Clause, not the
5th and 14th Amendment.
o Court resolves by saying private person acting in government role is different. Juror
is acting in a governmental function
o Dissent: Note that there is no dispute about the facts, but difference in how they
frame the issues and how they describe what counts as state action
Majority selection of jurors is state action.
Dissent exercising peremptory challenges is the state action
Whatever reason private litigant has for using peremptory challenge, its not
governments business.
o Why do we have peremptory challenges?
Attorneys may have reasons that are good but difficult to articulate
We value integrity of adversarial system, want to allow parties some
freedom to set things up.
CASE: J.E.B. v. Alabama
o OConnor dissents in Edmonson, but concurs here based on LUCK
The plaintiff here happened to be the state of Alabama, a government actor
and not a private litigant.
o

FRCP 39 Trial by Jury or by the Court

39(a) Exceptions once demanded - Once the demand has been made, there has to be
jury trial unless:
o (1) parties file stipulation to a nonjury trial
o (2) Court finds that on some or all of the issues theres no federal right to a jury trial
39(b) Sua Sponte Jury Trial - When jury trial not demanded, case to be tried by court.
But Court can order to have issues tried by jury even without a demand
39(c) Advisory jury - If action isnt triable by jury, the court, on motion or on its own
may:
o Try any issue with an advisory jury

OR, with parties consent, try any issue by a jury whose verdict has same effect as if
there was a jury trial.
NOTE: This is limitation on judges power to exercise discretion. If both
parties refuse jury trial, judge cant impanel jury whose decision is binding.
Only an advisory jury.
NOTE: If you blow deadline for requesting jury trial, can make untimely
application for relief from waiver.

Demand and Waiver of Trial by Jury

Bereslavsky v. Caffey
o Original complaint P seeks injunction, then strikes request for equitable reliefs,
amends to ask for money damages.
o Court says P is entitled to jury trial even though Rule 38b time period had expired;
although original complaint carried no right to a jury trial, later amendment
changing claim from equitable to legal relief renewed the right, gave plaintiff an
additional 10 days to demand a jury
o Contrary decision reached in American Home Products Corp v. Johnson & Johnson
What should court do when amendment is sought to change a claim for legal relief, on which
jury trial has been demanded, to a claim for equitable relief? Should court take into account
that the opposing party wants to retain jury trial?
FRCP 39b gives court discretion to permit jury trial despite absence of demand, but its
used sparingly.
o Beckstrom v. Coastwise
When demand for jury trial isnt seasonably made, this results in delay and
consequent further denial of justice to other litigants
o Is this attitude consistent with this countrys commitment to jury trial?
o Should a constitutional right be used as a pawn in a struggle for more adequately
staffed courts?
Contrast Beckstrom with the decision in Batteast Construction Co. v. Henry County Board of
Commissioners
o Courts ought to approach FRCP 39(b) with an open mind rather than a fixed policy.
o Should consider 5 factors
Whether the issues involved are best tried before a jury
Whether the courts schedule or that of the adverse party will be distuped
The degree of prejudice to the opposing party
Length of the delay
Reason for moving partys tardiness in demanding a jury trial
SO weve seen at waiver of jury right made after filing of complaint in an action. But a party
can waive the jury right before litigation begins and before dispute even arises

Waiver of a constitutional right requires a voluntary, intentional, knowing decision.

Can a jury waiver that is made before a dispute arises meet this standard?

Jury Selection
FRCP 47 Selecting Jurors

(a) Court may permit parties to examine jurors, or court may itself do so.
(b) - Court must allow the number of peremptory challenges provided by 28 U.S.C. 1870
o In civil cases, each party entitled to 3
Court can consider several defendants or plaintiffs to be considered as a
single party, or allow challenges to be exercised separately.
All challenges for cause or favor, whether to the array or panel or to
individual jurors, shall be determined by the court. ?
(c) Court may excuse juror for good cause
o NOTE: How representative of the community is a federal jury, in light of the fact that
substantial classes of people are exempt under 1863(b)
Based on, depending on state, citizenship, local residence, ownership of
property, health, payment of taxes

FRCP 48 Number of Jurors

(a) At least 6, no more than 12. Each jury member has to participate in verdict
(b) Unanimous verdict
(c)After verdict returned, party can request for court to poll jurors. If poll shows lack of
unanimity, court can order jury to deliberate further.

Jury size reflects a choice of institutional design

o Williams
Six is good enough in state court, so should be good enough in federal court
Concept of incorporation 6th Amendment applies to both federal and state
o Colgrove
Six-member jury is good enough for criminal, but were talking about CIVIL
cases
7th Amendment says to preserve the right, and at common law, necessary to
have 12
7th Amendment is concerned with the RIGHT of trial by jury, not the various
incidents (the details) of trial by jury
Jury composition
o Representative cross-section of community
CASE: Thiel exclude people who work for daily wage from jury duty
because it poses financial hardship. Court holds this is wrong that you can
exclude individuals for whom jury duty is hardship, but cant exclude all
daily wage earners.

CON:
o
o
o
PRO:
o

Seems wrong to systematically exclude certain people.

Expressive value we should at least express the idea that
juries should be representative
Turns jury into an instrument of the privileged

Efficiency why include people, like doctors, who are just

going to have to opt out anyway
Who is this rule supposed to protect?
o People are supposed to have opportunity to participate in
government
o But these day laborers wont be selected anyway. They have
to show up, lose wages from half a days labor.

CASE: Fay v. New York

SCOTUS says NY statute giving trial court discretion to empanel blue-ribbon
jury is constitutional
Fay was for state courts. What if this comes up in federal courts?
Doesnt 7th Amendment say person should be judged by peers
7th Amendment preserves what was in 1790s Englandthey werent
preserving this.

Judicial Control over the Jurys Verdict

50(a) before jury returns verdict; once evidence presented and witnesses have testified
50(b) after jury returns verdict
o NOTE: 50(a) and 50(b) compared
The only difference is timing. Otherwise, the same motion, same standards.
NOTE: You have to make Rule 50 motion for before a verdict in order to
preserve the motion for after the verdict. And since 50(b) is simply renewal
of 50(a) motion, you cant add elements not in your 50(a) motion.
o NOTE: Whats the point of having 50(a) and then 50(b)
Prof Judge may believe in value of jury trial, and believe the jury is going to
find correctly.
o NOTE: So whats the significant difference between 50(a), 50(b) and 56?
The time when they are made?
Should summary judgment be accorded different treatment from motion for
judgment as a matter of law, because of this difference in timing?
CASE: Galloway v. United States Defends constitutionality of judgment as a matter of law

Plaintiff charges that taking case away from jury on the ground the plaintiff didnt meet
burden of production at trial violates 7th Amendment right to trial by jury
o (1) FRCP says its ok explicitly approves of practice of directing verdict for
insufficiency of evidence

(2) THERE WERE EXCEPTIONS: In 1791, common law had judges take case away
from juries, too.
Through demurrer to the evidence
Through motion for a new trial
So plaintiff isnt objecting to the basic thing the power of court to
withhold case from jury or set aside verdict for insufficiency of
evidence
But saying the direct verdict of modern times is different from the
two common law procedures
o Higher standard of proof required
o The two procedures allowed further maintenance of
litigation by allowing litigant to challenge opponents
evidence, so 7th Amendment excludes procedures that dont
result in that
Ex. New trial gave litigant another chance to prove
case.
(3) THE EXCEPTIONS THEMSELVES WERE IN FLUX
Also, common law rules were not crystalized in a fixed system were
constantly changing and developing, so no single definition of the scope of
jury trial right that could be preserved, because we dont know which one
the court had in mind.
Basic intent of Amendment
7th Amendment doesnt bind federal courts to exactly follow common law
Preserve the basic institution of jury trial in only its most fundamental
elements, not just the great mass of procedural forms and details, varying
even then so widely among common-law jurisdictions
There is no one set standard of proof they need to be worked out according to the
particular situation of the case. But whatever name you call it,
Essential requirement mere speculation be not allowed to do duty for
probative facts, after making due allowance for all reasonably possible
inferences favoring the party whose case is attacked
Blacks dissent
Majoritys decision continues gradual erosion of essential guarantee of 7th
Amendment.
Majority is wrong to say demurrer to evidence is just a motion for directed
verdict, because
Demurrer to evidence you admit Ps evidence as credible, and ask
if, taking it all as true, D still wins. You only get one shot
o Less chances to avoid the jurys decision
JML if you lose this motion, then case just goes to jury, and then
you make motion again, and if lose, then you can appeal.
o Many opportunities to avoid the jurys decision.

THIS IS BAD - Were witnessing the development of added

judicial control - Court comes dangerously close to weighing
the credibility of a witness and rejecting his testimony
because the majority do not believe it.
Should only do directed verdicts when, without weighing credibility of
witnesses, its clear there is no room for honest difference of opinion over
factual issue in controversy
NOTE: Galloway is more in spirit of Colgrove case than Terry case
o Colgrove were not going to freeze all of the common law characteristics. Were
just preserving the basic right to jury trial
o Terry cares about how the world was in 1791, about the common law-equity
distinction.
o

Judgment as a Matter of Law

FRCP 50(a) before verdict

(1) If a party has been fully heard on issue during jury trial and court finds a reasonable
jury wouldnt have legally sufficient evidentiary basis to find for the party, court may:
o (A) Resolve issue against that party
o (B) Grant a motion for judgment as a matter of law
(2) Motion for judgment as a matter of law can be made any time before case submitted to
jury
o Must specify judgment sought and the law and facts entitling movant to the
judgment
o NOTE: Make sure you note who has the burden of production and who has burden
of persuasion on exam
o NOTE: Grant judgment as a matter of law only if the nonmovant hasnt met his
burden of production if he hadnt produced enough evidence to support a rational
verdict in his favor.

FRCP 50(b)- after verdict

If court doesnt grant motion for judgment as a matter of law made under Rule 50(a), its
considered to be that court submitting action to jury
Within 28 days after entry of judgment, movant can file a renewed motion for judgment as a
matter of law
o Can be joined with request for new trial under Rule 59
In ruling on renewed motion, court may:
o Allow judgment on the verdict, if jury returned verdict
o Order a new trial
o Or, direct entry of judgment as a matter of law
CASE: Neely v. Martin K. Eby Construction Co.
o Court of Appeals, after reversing defendants Rule 50(b) motion, CAN then itself order
dismissal or enter judgment for defendant, without taking away plaintiffs opportunity
to raise claim for new trial and thus violating Seventh Amendment right to jury trial

RULE 50(e) gave plaintiff the opportunity to present grounds for new trial in the
case his verdict was set aside by appeals court.
Didnt petition Appeals Court for rehearing, and in her brief, petitioner said
law suit was fairly tried and jury property instructed
CASE: Weisgram v. Marley
Appeals court finds that district court erred in allowing P to introduce expert
testimony, and the rest of the evidence in the record is not sufficient to support
verdict.
Under Neeley, could court of appeals render judgment as a matter of law for
defendant, or does it have to remand?
50e doesnt it have to be the party that won at trial? Here the
judgment as a matter of law would be for the party that lost at trial

FRCP 50(c) conditional ruling JAML and new trial

50(c)(1): if a judge grants renewed JAML, must also make conditional ruling on any new
trial motion (whether new trial granted if judgment is vacated or reversed)
50(c)(2): conditionally granting motion for new trial doesnt affect finality; if judgment
reversed, new trial must go ahead unless appeals court decides otherwise.
o PURPOSE: judicial economythe appellate court can conclude litigation all at once,
or have new trial be ordered
NOTE: 50(c) gives you another option versus moving for judgment as a matter of law.
NOTE: Comparing Rule 50 and Rule 59
o You cant appeal the grant of a new trial
o Case is not done
50 judge decides the case; 59 case is not done you have a second trial
Why have this separate layer of judicial oversight? Why would judge allow
new trial if the judge also denied judgment as a matter of law?
New evidence comes to light
o MAY
Difference in the power of district judge to decide 50 motion versus motion
for new trial.
Key word in 59 may

FRCP 50(d) within 28 days

The party against whom judgment as a matter of law rendered if they want to file motion
for new trial, within 28 days after entry of judgment.

FRCP 50(e)

Rule 50(e): A party wins at trial, is granted judgment as a matter of law. But loses at appeal
because CoA decides judgment shouldve been granted to other party. The losing party may
be able to argue the trial court was in error for one reason or another, and thus argue for
new trial in appeals court
NOTE: The only time 50(e) is relevant when you have the exact procedural steps below:
o Trial court doesnt grant directed verdict for defendant
o Appellate courts says, you shouldve granted directed verdict for defendant
o So P, after losing appeal on judgment as a matter of law, so on appeal, defendant is
winning, so P has the right to ask for new trial

Rule 50(e) allows the party that won the jury verdict to raise arguments for a new
trial initially with the trial judge or initially with the court of appeals. This is an

exception to the usual rule that arguments must be raised in the trial court to be
preserved for appeal. Nonetheless, as a matter of strategy, it may be wise not to
wait to raise arguments with the appellate court. It is usually better to have two
chances at convincing the court of your arguments (the trial court and then the
appellate court) than one.

Third, yes, if the court of appeals determines that the jury verdict should not
stand, and that the appellant's motion for JMOL has merit, the court of appeals
would then consider whether, rather than directing the entry of judgment in the
appellant's favor, to order a new trial. You are correct that an appellate court
would probably be reluctant to grant a new trial if either (a) the trial judge
considered and denied the request for a new trial or (b) there was no request for
a new trial to the trial judge, given that the new trial decision is committed to the
trial judge's discretion. If it was never considered by the trial judge in the first
place, though, Rule 50(e) allows the court of appeals to remand to the district
court so that the trial judge can "determine whether a new trial should be
granted."

New Trial
FRCP 59 New Trial; Altering or Amending a Judgment

NOTE: Unlike motion for judgment as a matter of law, which leads to judgment for moving
party, grant of a new trial does not end the case simply leads to a second trial
NOTE: Grounds for new trial
o Misconduct with the jury (corruption; violation of judges instructions, such as
gathering information on the Internet rather than relying on facts in evidence; juror
contact with witnesses)
o Misconduct by the other party (making inflammatory stamenets that create legally
irrelevant bias on the part of the jury)
o Newly discovered evidence that could have been found earlier through reasonale
diligence
o Errors of law or abuse of discretion ( improper admission of, or refusal to admit
evidence)
o Against great weight of the evidence
o Verdict not justified by the evidence
o Damages are very excessive or insufficient

NOTE: In a non-jury trial, court can still award new trial on the same grounds it would have
awarded a new trial in jury trial
NOTE: Only time a winning party asks for new trial if losing party asks for judgment as a
matter of law? (Ask Steve)
59(a)(1) Grounds for granting motion for new trial
(A) after jury trial, for any reason for new trial thats been granted before in federal court

(B) after nonjury trial, for any reason for rehearing thats been granted before in an equity
suit in federal court
59(a)(2) Further action on motion after nonjury trial
take additional testimony, amend facts and conclusions, open the judgment if one has been
entered, direct entry of new judgment
59(b) Motion for new trial within 28 days after entry of final judgment
59(c) Affidavits
59(d) New trial on court initiative
For any reason thatd justify granting one on a partys motion - Within 28 days after entry of
judgment, court can order new trial
For reason not stated in motion - may grant motion for new trial after giving parties notice
and opportunity to be heard
59(e) Motion to Alter or Amend a Judgment
Make within 28 days after judgment
NOTE: Range of trial courts discretion in granting new trials:
Theoretically, only errors that affect result but wouldnt lead to reversal on appeal are the only ones
trial court has discretion to decide, but the power of court to grant new trials is not to be taken
lightly.

1. Litigant may be using motion for new trial as all-or-nothing strategy

a. Doesnt have funds to continue fighting
b. Case isnt worth the added cost of appeal.
2. Grant of new trial, not being a final judgment, cant be appealed
o Cost of new trial will have to absorbed before an appeal is even possible
3. The question of what constitutes reversible error on appeal can be affected by how trial
judge ruled
o If trial judge dismissed error as harmless, may affect appeals courts opinion of
whether alleged error was harmless
o In jurisdiction where motion for new trial is prerequisite for appeal, and judge
denies new trial, thatll influence appellate courts decision on whether error is
harmless for purposes of appeal if the effect of error in question can be better
determined by trial judge.

FRCP 61 Harmless Error

No error by the court is grounds for granting new trial, setting aside verdict or modifying a
judgment or order, UNLESS justice requires otherwise
Court must disregard errors that dont affect any partys substantial rights.
NOTE:
o Error must affect substantial rights of parties

o
o

3 types of errors committed during course of trial:

Would result in reversal if case appealed
May have impact on verdict, but dont justify reversal of case on appeal
Dont significantly affect outcome
Last one harmless, would be abuse of discretion for trial court to initiate new trial
based on them.
First one demand remedial measures at trial level

APPEAL

The basic rule limiting appeals to final judgments has a number of exclusions and
exceptions
o sometimes, an aggrieved party can request the matter be reviewed at once, without
awaiting a final decision

Finality

Advantages of waiting until final judgment to enter an appeal

o Not practical to have appeals court review EVERY ruling made by trial court
o Repeated interruptions/delays could put the trial process out of control, even if
appeals taken in good faith out of reasonable belief court is wrong
o Adversaries may exploit opportunity to delay and harass each other
o Say you have more opportunities for interlocutory (provisional) review but that
means taking away the advantage of the opportunity correct a wrong ruling
Offset to the latter most trial court rulings are correct, and uncorrected
wrong rulings in the end dont taint final judgment
Price to be paid for final judgment rule
o If appeal delayed until final judgment may have to repeat the entire trial
Costs expense, anxiety
Loss of evidence
May be lapses of memory, inconsequential inconsistencies whose
importance is exaggerated
Strategies revealed already so have to be revised
Opportunities to sustain truth by impeachment are diminished
o Beyond impact on individual cases
Loss of opportunity for interlocutory review means that some areas of law
must develop without much opportunity for appellate guidance
Questions of discoverymay divide and confuse trial courts for years
without the guidance and uniformity that appeals provide.
If only final orders are appealble, hat counts as final?
o Interlocking of rule 54b, statutes and case law
o Cohen o Interlocutory appealability of orders

28 U.S.C. 1291. Final Decisions of District Courts. (IF FINAL ORDERS, APPEALABLE)

Court of Appeals (other than U.S. Court of Appeals for the Federal Circuit) has jurisdiction
over appeals of all final decisions of the district courts, except for decisions that can go
straight to the Supreme Court
NOTE: This rule defines scope of appellate jurisdiction, of appellate power
o So, you cant take an appeal under 1291 until theres been a decision that ends the
litigation on the merits and leaves nothing more for the courts to do but execute
judgment.
o Why FINAL decisions? Why doesnt CoA have power to review all decisions?
Repeated interruptions and delays if every single ruling is reviewed
o Downside of final judgment rule
Important decisions in the middle of case that court gets wrong youd have
to wait all the way until judgment and then go all the way back and do it over
Decisions made very early in case whether to deny a motion to dismiss.
Seems silly to go all the way until the end.

28 U.S.C. 1292 (a) . Interlocutory Decisions Injunctions, Receivers & Admiralty

Exceptions (HERE ARE THE NONFINAL ORDERS THAT ARE APPEALABLE)

CoA has jurisdiction over:

(1) INJUNCTIONS: any interlocutory order granting, continuing, modifying, refusing or
dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct
review may be had in the Supreme Court;
(2) RECEIVERS: Interlocutory orders appointing receivers, or refusing orders to wind up
receiverships or to take steps to accomplish receiverships
(3) ADMIRALTY CASES: Interlocutory order determining rights and liabilities of the parties
to admiralty cases

28 U.S.C. 1292 (b) . Interlocutory Appeal by Certification (HERE ARE THE

MECHANISMS BY WHICH YOU DO 1292(A))

the order involves controlling question of law

o the question would control the outcome of the case
o an issue of law, not fact.
This is major limitation on 1292. Questions of fact are not appealable
On which there is substantial grounds for difference of opinion
o Rationale dont want people appealing something obvious just to be difficult
Must advance termination of litigation
o Tradeoff between benefits and costs of final judgment requirement
Benefit no harassing, piecemeal appeals
Cost- important decisive issue that court gets wrong in middle of the case,
and case is wasted.
Factors relevant to satisfy this element
Will a reversal end litigation or get us close to it?

How much more litigation is left? If a lot, certification can save time
and money by ending litigation
o Does this serve the ends we care about when we talk about finality
Judge must state so in writing in the order
o Party cant go to Appeals Court and say, theres controlling question, substantial
difference, etc. You have to say, district judge said so in writing.
Petitioner must make application to Court of Appeals within 10 days of the order
CoA has discretion: The Court of Appeals has to agree to take the case
o Last four of the six what District Court do
o Last two of the six what Appeals Court has to do

What if the statute explicitly permits both injunctive relief and some form of damages?
How does this affect our determination of whether there is a right to trial by jury for
claims under the statute? The answer here, as the discussion above might suggest, is
that injunctive relief is always awarded by a judge, not a jury. Thus, the Seventh
Amendment issue only arises in a case where the plaintiff is seeking damages and not
just an injunction. Iin this scenario, you can ignore the injunctive relief in the Seventh
Amendment analysis, since the injunction is going to the judge no matter what.
The Curtis case that we read is an example of this. In Curtis, the plaintiff had originally
sought injunctive relief and damages, and the judge (not a jury!) had awarded the
injunctive relief. But the Court ignores the fact that injunctive relief is available under
Title VIII when addressing the Seventh Amendment issue of a right to a jury with
respect to the rest of the case.
FRCP 54(b)
(b) Judgment on Multiple Claims or Involving Multiple Parties
When action presents multiple claims for relief or when multiple parties are involved, court
can grant final judgment to one or more, but not all claims or parties, if court finds no just
reason for delay.
o NOTE: Partial judgment under 54(b) permits interlocutory appeal. But one of the
claims must be final. No entry of final judgment on part of claim no interlocutory
appeal. What
o District judge can make a decision that would otherwise be interlocutory final.
Doesnt make the whole decision final, because litigation continues, but that part of
litigation is done. Judge has to say hes entering final judgment, and needs to make
determination that is separate from deciding claims.
Otherwise, any order or decision that adjudicates fewer than all of the claims doesnt end
the action as to any of the claims or parties, can be revised at any time before entry of
judgment deciding all of the claims and all of the parties rights
CASE: Liberty Mutual Insurance Co. v. Wetzel

Respondents claim petitioners employee insurance benefits and maternity leave

regulations discriminate against women in violation of Title 7 of Civil Right Act of
1964
Complaint contains several requests for relief
Require defendant to establish non-discriminatory hiring
Enjoin defendants continuance of discriminatory acts
Require D to pay adjusted backpay with interest, etc.
Respondents, after extensive discovery, move for partial summary judgment ONLY
on issue of liability; District Court issues order that the insurance policies did violate
title 7
So they issue declaratory judgment on issue of liability, but leave unresolved
respondents requests for relief specified in the complaint (requested
injunction, damages, attorneys fees; were awarded none.)
Logic of District Court
According to Rule 54(b), there was no just reason for delay, so the orders
became appealable as a final decision under 28 U.S.C. Sect. 1291
Misapplication of Rule 54(b)
This is a SINGLE claim
Requested multiple types of relief, but their complaint advanced a
single legal theory that insurance policy violated Title 7
Rule 54(b) limited to multiple claims actions where less than all of the
multiple claims have been decided and are found ready for appeal
The interlocutory decision also not appealable under 29 U.S.C. Section 1291 or 1292
1291 if assessment of damages or awarding of other relief remains to be
resolved, the judgment is interlocutory, and not final under the meaning of
1291
1292(a)
If District Court had granted injunctive relief but not ruled on the
other requests for relief, the order would have been appealable
under 1291(a)(1)
But District Court did NOT issue injunction
1292(b) Even if the District Courts efforts to satisfy 54(b) are viewed as
compliance of the certification requirement of 1292(b), theres no showing
that the petitioner made application to CoA within the 10 day timeframe.
Implications of sustaining the District Courts procedure
District courts can render interlocutory decision on question of liability for
defendant, defendant can appeal to Court of Appeals without satisfying any
of the requirements Congress carefully sets forth
Congress took care with these statutes to provide some flexibility, to avoid
danger of rigidly insisting upon a final decision for appeal in every case,
and tried to provide ample room for appeal of orders which are not final in
order to alleviate any hardship.

NOTE: Neither party raised jurisdiction at all, but SCOTUS says 3rd Circuit didnt
have jurisdiction. Raises the issue because jurisdiction is so important goes to
power of the court to act at all, hear the dispute at all.
CASE: Cohen v. Beneficial Industrial Loan
o Collateral order doctrine
Not an exception to the final decision rule of Sect. 1291, but a practical
construction of it (Will v. Hallock, Justice Souter)
Accommodates a small class of rulings that dont conclude the litigation but
conclusively resolve claims of rights separable from and collateral to rights
asserted in the action.
The claims are too important to be denied review and too independent of
the cause itself to require the appellate consideration be deferred until the
whole cause adjudicated
NOTE: What counts as important enough introduces an element of
discretion
NOTE: Compare with 1292(B)
o Collateral order doctrine is a final order. So its final you
have the right to appeal
o 1292(b) you dont have a right to appeal. You have to ask
for the appeal
o District Court finds that New Jersey statute requiring Cohen to post a bond for
defendants costs in order to bring security suit is inapplicable because the action is
in federal court.
o SCOTUS affirms CoAs reversal, address appealability:
(1) The order being appealed theres nothing more than can be done on
this issue
(2) The right itself is separable from the issues in the case that will lead to
ultimate judgment of the case
(3) The rights at stake in the appeal would be lost if wait until final
decision
If order is effectively unreviewable upon final judgment of the case,
then the order should be reviewable immediately.
By the time they get around to it, the rights have dissipated. If you
wait until the end of the suit, its irrelevant.
o When you want to appeal under Cohen collateral order doctrine, do you bring under
1291 or 1292?
Well, is the thing being appealed an interlocutory order or a final decision on
separate issue?
In Cohen case, its interlocutory in the sense that its in the middle of
the suit, but its final in the sense that its an important issue
separate from the issues of the case and is effectively unreviewable
o Parallel to Hickman v. Taylor
o

Contempt order for failing to produce the stuff IS appealable, though whats
discoverable or not is interlocutory order not subject to appeal.

Issues Subject to Review

Limits to the scope of appellate review

Alleged errors must appear in the trial court record. If not in the record, you cannot use it
on appeal.
o NOTE: Hostile lawyers in court are often building the record for appeal, so that
maximum amount of favorable information is available to be possibly deployed on
appeal. Hostile judge can respond by refusing to allow a party to admit
documentation thats essential to the case
Aggrieved party must have objected prompt to trial court regarding rulings or events the
judge could have corrected.
o NOTE: There may be times when a competent attorney could make a timely
objection but doesnt because they know the objection will annoy the judge.
Cannot be harmless error the error must have affected parties substantial rights
o NOTE: Rationale for rule judicial economy. There are probably small errors all the
time, and you cant have appellate courts take cased based on every single instance.
Why not have this rule? Appellate courts have an error-correction function. Thats
their job. Or perhaps its not obvious right away whether an error is harmless.
o

o
o

1. Whats the justification for rule that party cant raise issue on appeal that wasnt
raised in trial court?
Is it fair to penalize the party for whats likely the lawyers error?
Note Under 60(b) party can ask district court to reopen judgment on the
basis of newly discovered facts
2. What if party raises new theory based on facts that were presented at trial?
Should appellate court be allowed to take the new theory into account?
3. Whats the justification for the rule that a harmless error cant provide basis for
reversal?
Does this rule allowing appellate courts to disregard certain errors
undermine appellate courts error-correction function? Or is the rule making
it possible for appellate court to instruct lower courts without expense of a
new trial?

AMERICAN CIVIL PROCEDURE IN LARGER CONTEXT

Alternative Dispute Resolution: Arbitration, Mediation and Settlement

NOTE: Keep in mind most disputes never even get to court. Lawsuit is filed and then settled
or mediated.
NOTE: Keep in mind the advantages and disadvantages of various forms of ADR

NOTE: So to what extent does ADR interact with litigation?

o The threat of trial shapes how you behave in these forms of ADR. ADR is not
independent of the rules of civil procedure.
Credibility of your opponents threat to go to trial
If you know your case is strong enough to meet the standard of
summary judgment, you have more bargaining power
There are aspects of litigation that make trial more expensive, and the
expense makes threat of trial more credible
Extent or availability of discovery
Standard by which summary judgment

Critique of Adversarial Justice

Practical critique: Operation of the system doesnt align with its ideal of justice
o Resources not distributed equally among litigants
NOTE: This is a fair point, but whats the alternative? The unequal
distribution of resources infects negotiation, mediation, too basically all
possible ways of resolving disputes.
o Lawyers zeal for client is distorted by self-interested pursuit of profit
NOTE: Contingency fees
Does it make you want to win at all costs? (do unethical things to
win)
Or does it make you want to pursue settlement just to make sure you
get paid even if the terms of settlement are unfavorable.
NOTE: What if you remove litigation and only have ADR? Youre removing
one type of incentive, replacing with another. What person is going to help a
worthy plaintiff hurt by a large corporation if they know theyre not going to
have contingency fees by which to get paid?
NOTE: One plus of litigation makes predictable the rules by which citizens
are expected to conduct their affairs.
o Decision makers inescapably tainted by bias
NOTE: If you try to diminish lawyers ability to act in their self-interest, that
just makes the role of the judge stronger. You havent solved the problem,
just moved it.
o Machinery of adversary system allows, even encourages, results that are contrary to
its goals Rather than truth and justice, hiding of information and strategic
manipulation
Lawyers training frame issues narrowly, which may not fully represent
clients wishes
Excessive zeal
Discovery abuse, filing frivolous pleadings and motions, deceptive
practices = witness coaching and manipulative cross-examination
that distorts truth
And lawyers self-interest in these practices these excesses mean
lots of billable hours

BUT poor lawyer-client communication and these sharp practices dont call for
abolishment of adversary system, but ways to reform procedures to make them
work according to their intended goals, and changing how we regulate attorney
behavior
Theoretical critique
o The facts do not always capture the truth, which is not a knowable commodity
People view the facts differently, theres no right answer to the question,
What really happened
Litigation indulges us in the illusion that theres an objective, knowable truth
Think about different goals of adversarial v. inquisitorial.
o Truths are multiple, so its not a viable goal around which to structure the ideal of
adversary justice.
Critiques of civil litigation as a type of dispute resolution
o Formality of litigation offers advantages
Public accountability, enforcement of rights by the state, opportunities for
individual participation
o Disadvantages
Courts declining ability to manage growing caseloads
Delay
The rules of procedure can protect litigants, but also invites strategic
manipulation
For certain litigants, justice delayed is justice denied
Threat of delay pressure on one of the parties to settle for unfair
terms
Costs
Party with meritorious claims decide their claim is too small to
pursue given the cost
Or is out-litigated by party with more resources/experience
o NOTE: Prof Not necessarily a bad thing for litigation to have
costs and delay. Its not obvious we want a dispute resolution
system thats fast and cheap. Then maybe A sues B for
bumping into B in the hall. We want people to think carefully
about bringing suits.
o Removes from the parties the ability to craft solutions, direct control of the
decision making process, substituting lawyers and judges, parties with expertise
and professional skill
o Creates incentives for adversaries to hide facts, instead of promoting maximal
disclosure of facts
o Polarize the parties
Decreasing opportunities for future cooperation, whether its among
neighbors and family members or business relationships
o Distorts how we think about legal and human problem solving, boiling down
what we really care about by assuming there are only two sides to an issue or that
o

truth can best be reached by two parties vigorously contesting what happened, or
saying stuff like privileges, trade secrets, bias and prejudice, constitutional rights,
are the only relevant interests
Often, whats most important to parties is excluded from consideration as
irrelevant and inadmissible
Adversarial justice just doesnt adequately consider or protect the interests
that motivate an individual to press a dispute
What factors should be considered in deciding whether a dispute should not be litigation
but better resolve through ADR?
o Availability of a remedy
o Likelihood of convincing a jury that the claim is worthy
o Litigants psychic gains from participating in public proceeding
o Cost to reputation want to resolve claims free from public scrutiny
o Disruption to family life
Why might disputants choose litigation or ADR over the other?
o Adjudication perceived fairness, capacity to generate participant satisfaction and
trust
o Parties prefer processes that offer control such that
Neutral third party will allow the parties to craft their own resolution
Control over presentation of evidence
Both disputants agreed on a set of rules in advance of resolution process
o Congress creates 9/11 Victim Compensation Fund. Compensation conditional on
claimants waiving the right to bring lawsuit for damages. 5,500 accept cash payment
from VCF, but 96 go ahead and litigate instead of accepting cash
They framed their decision in terms of citizenship nd community
Wanted to tell their story, force facts into the public domain
They would have pursued declaratory judgment, without monetary
relief, if it would generate public information and promote
government accountability
Could ADR, with its informal, normless decision making, subvert democratic values?

Variety of ADR procedures (ADR a multiplicity of approaches, not a single system)

Some ADR procedures dont reject adversarial mode, just question the lawyer-client
relationship
o Federal Rules tacitly posit lawyer as central figure, but some ADR processes are
premised on litigants as key actors in dispute resolution
Other ADR procedures try to develop more cooperative responses beyond those typically
employed in courts
Considerations in designing fair and efficient ADR system?
o Who resolves dispute?
Judge, officer of the state with legal expertise, lawyer, representative of
community,
Disputants themselves, or with help of neutral third party
o Whats the source of the standard for resolution?

Rules established by legislatures and courts (Law)

Prior practice of similarly situated disputants
Standards developed by disputants themselves
Norms of the industry, etc.
Values fairness, social norms
o Juries
Maybe juries decide things differently than judge
ideas of who is the good guy and whos the bad guy
o Judges, too
Many decisions at trial court stage are up to the
discretion of the judge
In the litigation context, too theres sometimes implicit
incorporation of these norms or values
Who speaks for disputants?
Lawyers, disputants themselves, representatives of disputants who may
have no legal training (friends, neighbors)
Theres nothing unique in litigation about involvement of lawyers
At arbitration, mediation, negotiation, you can have lawyers
Nature and extent of fact-finding and standard-finding
SO, to what extent does factfiner have to rely on the factsinvolved,
Who is the person who finds the facts
How much power does the decider have
Mediation maybe no fact finding involved they can remain in
disagreement about the facts, theyre just deciding on the settlement amount
Litigation model assumes theres facting finding, but other models of dispute
resolution dont necessarily need facts

No fact-finding and standard-finding

Relying on third party to do this, or sharing of these tasks by disputants and
third parties
Or by disputants alone
Who decides dispute?
Parties themselves need not always be a third party
And who decides who decides the dispute?
o Plaintiff decides in some sense they choose where to file
the case
o ARBITRATION you may get a randomly assigned arbitrator,
or the parties may choose the person themselves
Third party mandated by state
Third party chosen by disputants
Binding effect of resolution?

In an advisory sense

 Binding on parties through coercive sanctions

Binding in a way the parties decide themselves
Each form has strengths and weaknesses

Mediation good forum for mediating an ongoing relationship; may be useless in acutely
antagonistic relationship
Arbitration fast and inexpensive method of resolving simple disputes, but inappropriate
for complex multi-party disputes or when disputants have unequal bargaining power
Litigation good for complex issues requiring public adjudication, but demands
sophisticated knowledge and legal expertise
o What should be the principles that guide selecting a method for resolving a
particular dispute?
Negotiation
Disputants themselves resolve conflict under whatever standards they choose
o But standards of fairness are important to success of negotiations, and legal rules
can play a role, too.
Lawyers can become involved
Difference from adjudication
o Open-ended operation of norms
When norms collide, parties take into account both of the norms
Legally invalid norms can be accepted if it leads to favorable settlement
Plaintiff with contributory negligence allowed to make favorable
settlement due to legally invalid but socially real principle of
comparative negligence
Mediation
Neutral third party mediates. Just mediates doesnt judge the dispute parties do that.
o Not empowered to render decision. Decisionmakers are disputants
Mediator doesnt evaluate strengths or weaknesses of each sides case
Instead, seeks common ground
In mediation, no discovery mechanism to reveal information that may be critical to full and
fair evaluation of the dispute
Considered most appropriate
o with parties of equal bargaining power
Conflict between individuals, not between individual and private institution
or government
o Continuing relationship
Mediation, instead of assigning blame, focuses on maintaining amicable
relatinoship
Arbitration (most important of the types)
Significant relationship to litigation
o Many courts require arbitration of certain disputes
o Contracts often require parties to submit to arbitration
Arbitration hearing is an adversary proceeding

o Parties select an arbitrator who conducts hearing, and then reach decision
o Each party presents case, with cross-exam and rebuttal
o Lawyers often represent disputants
o Decision of arbitrator award, and both parties bound to abide by the award
Arbitration is contractual
o Parties have to have agreed in writing before the dispute arose to submit
disagreements to arbitration
o OR must have entered into agreement to submit existing dispute to arbitration
Though an adversary procedure, arbitrator is relative free to shape hearings as he sees fit
o Arbitrator has broad discretion to admit or exclude evidence or refuse to hear
witness - and has lots of power to find facts and decide questions of law
o And though most arbitrators comply with legal rules of evidence, are not bound to
Patterns of practice tend to differ based on particular types of arbitration
o Commercial arbitrators receive written briefs, while labor arbitrators discourage
them
o Arbitration in securities industry offers formalized discovery proceedings
Others forms of arbitration p. 1369
Neutral Factfinding and Ombudspersons
Using third party to gather information relevant to settling dispute
Ombudsperson
o Investigates complaint against institution, advises complainant of options and
resources, proposes settlement
o Steering a complaint through a tangled bureaucracy
Most appropriate for
o Closely regulated institutions where customer satisfaction critical
o Institution concerned with resolving dispute internally -- universities
Early Neutral Evaluation
ENE is designed to address this problem: parties dont settle early in litigation because they
arent able to evaluate case adequately until trial process allows them to do so
Parties select neutral, and make factual and legal presentation of a dispute to the neutral
Neutral experienced lawyer or judge, provides open assessment of the dispute. Sometimes
encourages settlement, at very least helps focus issues for the litigation process
Mini-Trials
Tailored to desires of disputants
Limited discovery process + lawyers present abbreviated version of case to panel of
managers with authority to settle and a neutral advisor (retired judge or respected lawyer)
o Managers then enter settlement negotiations
Encourages parties to adopt more realistic goal in negotiating settlement
Key to process managers see the other sides best case directly
Used successfully for cases bogged down in discovery by reconverting a lawyers problem
back into a business problem
Summary Jury Trial
Lawyers present abbreviated case before 6 jury panel

Less than a week

Verdict is non-binding, provides basis for settlement
Useful when parties have very different views regarding likely outcome of case and prior
settlement attempts unsuccessful
Private Judging
Resolution made in accordance with law, while bypassing backlog in trial courts
Disputants who can afford, will get private judge after dispute has arisen and been filed in
court
Conducted much the same manner of bench trial, but simplified and expedited manner
Unlike arbitrators award, decision can be appealed as if the court had made the decision