Brian McDonald, Civ Pro: Bundy, Fall 1999

Civil Procedure Outline

I. Basic Elements of Civil Procedure

A. Based on a dispute:
1. Facts: what happened
2. Law: what law to apply
B. Involves anyone: private parties, corporations, civil organizations
C. Goldberg v. Kelly: denial of welfare benefits and due process
1. Arguments:
a. P: termination of benefits w/o notice or hearing
b. D: post-termination hearing
2. Issue: Does 14th Amendment of Due Process protect these interests?
3. Various versions of the process:
a. Pre-Litigation: T-notice/ “Fair Hearing” (FH)
b. Post-Litigation: Meet w/social worker/Decis letter 7 days before T with
option to submit letter in defense/T-notice/FH
c. S.Ct. determined to be insufficient process since it has 2 fatal flaws:
1. Opp to appear personally and testify orally
2. Opp to confront and cross-ex witnesses
4. S. Ct’s Analysis: How bad is the harm and does it outweigh the govt’s
interests
a. Worst case for gov’t: Certainly issues dealing with money lost when
benefits should have been denied
b. Worst case for respondents: denied money necessary for survival.
1. Really double-edged sword since 1. Financial troubles and 2.
Impairs ability to redress wrongful action
c. Clearly costs outweigh the benefits, should expand procedure
d. Finally, acknowledged that due process was at stake, but it was vague
and open for interpretation: How much process is really necessary?
Need to look at costs/benefits
5. Dissent: not really their property in the first place; no affirmative promise; it
is a gift?
a. Irrecoverable $ for government
b. This will make gov’t less likely to put people on welfare
c. Also, procedural overloading of courts
6. S. Ct’s version is better b/c corrects for 2 fatal flaws above:
a. Less educated need chance for oral presentation since they can’t write
b. Procedure becomes more accurate correcting for biases
c. Meaningful participation
d. Builds more accurate factual basis
7. Also better b/c gives adequate notice, permits retention of counsel,
unbiased decision maker, decision based on record, and reasons are
stated openly.
8. Rule: Important to protect due process, protection of civilians
against governmental interests, and to ensure that the recipient has
the best of capabilities for effective participation in the system.

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a. Court doesn’t trust government b/c $ tightly held and not unbiased in
this case.
9. Policy: Are courts overstepping their bounds here? Shd Legislature make
these changes?
a. Hard to say, but OK in this case b/c
1. Welfare recipients don’t have legislative representation
2. Legislature is slow and these are survival issues at stake
D. Michelman: The S. Ct. and Litigation Access Fees: The Right to Protect
One’s Rights
1. Four values that are generally furthered by allowing people to litigate:
a. Dignity: Need to respond to “perceived wrong” to maintain self-respect
b. Participation: Right to participate, free speech.
c. Deterrence: Constrains all parties to acts that are aimed at social
welfare
d. Effectuation: ability to stand up for one’s rights
2. The Process Due: must weigh cost/benefits analysis (as in Goldberg)
3. Matthews v. Eldridge: Denial of Veterans Social Security Benefits
and Due Process
A. Much like the Goldberg v. Kelly case (see brief for details)
B. Arguments: Due process denied since no pre-termination hearings
C. Process included investigation, questionnaire, inquiry to physician,
optional official medical review, notice of termination (with summary of
reasons), opp to review evidence, and right to counsel, decision on
record w/SSA, and termination
D. S. Ct’s analysis: Must again employ cost-benefit analysis:
1. Degree of deprivation
2. Probable value of additional safeguards
3. Costs to government
= Determination that costs do not outweigh benefits, procedure is
adequate
Unlike Goldberg b/c distinction drawn between SS Benefits and
Welfare Benefits
Costs in Goldberg do not apply:
1. Oral vs. Written: Here, physician’s reports are good versions of
the facts
2. Ability to appear in person: Does not change nature of facts or
remove biases, since Physician’s reports are not likely to be
biased.
E. Counter-Args: Seriousness of harm still great, and med opinions could
be biased
F. Rule: To satisfy due process, procedures must be tailored, in light
of the decision to be made, to the capacities and circumstances
of those who are to be heard, to insure that they are given a
meaningful oportunity to present their case.
E. Van Harken v. City of Chicago: Parking Ticket and Due Process
1. Argued based on Goldberg case (see brief for details)

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2. Arguments:
P = denied due process if not allowed to appeal decision (since pay $200)
D = not denied due process
3. Process includes: part time lawyer as judge, officer not required to appear,
respondent can present evidence, cannot appeal ($200 to do so)
4. Employing Cost Benefit Analysis:
a. costs for P are low b/c only $100 and Social stigma is low
b. but costs for State are high b/c administrative bureaucracy would be
crazy
5. Rule: Test for due process is procedura minima as set forth in
Matthews. Must use cost-benefit analysis: “the less that is at stake
the less process is due.”
6. Policy: if accept this rule, will accept that some public violations will go
without appeal.

II. Pleadings
-- 2 documents: summons/complaint
A. Specificity of Pleading (FORM: not substance of claim)
1. Is pleading sufficient? 3 elements needed: (R 8a)
a. appropriate jurisdiction
b. claim showing P is entitled to relief (violation of a law and
supporting facts)
c. relief sought
2. If pleading is insufficient, what can D do?
a. Move for more definite statement (R 12e)
3. If pleading is sufficient but still vague, why send it to trial?
a. P might want to discover facts during discovery
b. As long as D knows of accident, should not be complete mystery
4. Examples:
a. Sufficient Claim: Bell v. Novick Transfer Co. (child injured in auto
accident)
1. D moved to dismiss since P only alleged general negligence but
no specific acts.
2. Court ruled pleading was sufficient per rule above
b. Insufficient Claim: People ex rel Dept of Transportation v.
Superior Court (demurrer of offic form)
1. D moved to demurrer complaint filed on official form, but Sup
court said form could not be demurred. D filed writ of
mandamus
2. AC ruled could be demurred since facts re cause of action were
insufficient. Re dangerous condition of public property, four
requirements (see brief)
B. Adequacy of Pleading (SUBSTANCE: not form of claim)
1. Is pleading adequate?
a. Are the violations of an actual law alleged?
b. Is there factual support for the allegations?

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***a claim may be dismissed if its claims are unquestionably

insufficient to entitle the P to relief no matter what facts are proved at
trial
2. If inadequate, what can D do?
a. Move to dismiss for failure to state claim for relief can be granted (R
12.b.6)
3. Examples
a. Inadequate Pleading: Duncan v. AT&T Communications
(racial/disab discrim)
1. Pleading was poorly written and baldly conclusory without any
evidence
a. Racial discrim act has four issues: failed to allege 3 of them
(see brief)
2. Court would not give leave to amend b/c suspected no
substance to claim
3. PolNote: P try to change law, but might be better to go through
legislature
b. Adequate Pleading: Rannels v. S.E. Nichols, Inc. (broken jeans)
1. Pleading failed to allege 2/3 elements of malicious prosecut. law
(see brief)
2. Court overruled saying P had pleaded adequately. One could
infer from complaint that appellees knew she hadn’t broken law,
and there was clearly malice from pres’s comment.
c. Very goal of Fed Rules was to reduce info in pleadings, just plead
generally
1. Had Rannels been more vague, might have not ran into trouble
in pleading
2. Always tension twixt too much detail and adequate descrip of
substantial elements of claim
C. Rule 11: Ethical Limitations and Disfavoured Claims
1. Is the pleading reasonable? (made in good faith that it might be true) Four
standards:
a. not presented for improper purpose
b. claims, defenses and other contentions warranted by law
c. allegations or other factual contentions have evidentiary support (or
likely will)
d. denial of factual contentions have evidenciary support (or likely will)
2. Examples
a. Claim if frivilous: Business Guides v. Chromatic Communications
(copied guidebook info)
1. While pressured initially to halt competitor from publishing results,
later discoveries of false information should have forced Ps to end
claim
***Rule requires “inquiry reasonable under the circumstances”
2. Court held sanctions were appropriate b/c no facts to support the
claim (R 11.b.3)

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b. Claim is frivilous: Gerbode v. Religious Technology Center (RICO

statute false)
1. Party sued other party and there was no existing law to justify this
claim.
2. Court held sanctions were appropriate b/c no law to support the
claim (R 11.b.2)
Punishment mainly aimed at lawyers since they misrepresented the
law
c. PolNote: What are costs and benefits of Rule 11:
1. Costs: (a) free speech, (b) attempts to change law
2. Benefits: reducing flood of litigation
3. Enforcement of Rule 11 (what sanctions are appropriate)
a. Court may impose sanction, but not required
b. Court may increase or decrease sanction amount accd’g to desired
deterrence
c. Only lawyer will be sanctioned for misrepresentation of the law
4. Pleading in the alternative: Bundy Hypo 1 (drunk driver)
a. Even if claims are completely contradictory, can plead them both b/c
feel that one or the other will be proven in discovery. However, once it
is clear that one of them is true, must discontinue with the other.
b. This is not a violation of Rule 11
D. Burden of Pleading:
1. Burden of Proof:
a. Minimum level of evidence to bring to trial.
2. Burden of Persuasion:
a. Civil: more probable than not
b. Criminal: beyond a reasonable doubt
3. Where do burdens of pleading lie?
a. Burden of pleading an affirmative defense lies with the Defendant
b. P only bears burden of pleading what is expressly stated in statute
c. Heightened burden of specificity in cases of fraud (R. 9.b)
1. Key elements of fraud: (a) falsehood (b) knowingly (c) material (lie
matters) (d) person relied on lie and (e) damages resulted
2. Why need specificity: (a) notice to defendant of lie claiming, (b) but
not info generating
4. Examples
a. Burden of pleading met: Gomez v. Toledo (disgruntled policeman)
1. P pleaded (a) violation of due process (b) under color of state law.
Lower court held this was insufficient b/c superior officer held
“qualified immunity for all acts done in ‘good faith’” and P failed to
plead ‘bad faith’
2. S Ct. held that this should be pleaded by the D since it is an affirm.
defense
3. PolNote: Most civil rights cases = Ds acting unfairly and therefore
should be forced to plead it. However, many want to assume they

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are doing their job the best they can and therefore P should have to
plead it.
b. Burden of pleading not met: Shultea v. Wood (corrupt council
member)
1. Two key cases: Elliot v. Perez (1985) (requiring heightened
specificity) and Leatherman v. Tarrant (1993) (denying right to
require more specificity in civil rights cases): Question in case was
whether P should have to disprove affirmative defense of qualified
immunity of city council member.
2. Court upheld Leatherman and said D has to plead the affirmative
defense and P would be required to respond. (Therefore, Rule 9.b
doesn’t apply here)
E. Response/Answer:
1. Two ways to approach answer:
a. actual factual dispute: file answer and start to fight
b. avoid need to reply: pre-answer motion
1. Wrong court over subject matter
2. Wrong court over person
3. Improper venue (area)
4. Insufficiency of process/service of process
5. Failure to state a claim upon which relief can be granted
6. Failure to join an indispensable party under Rule 19
c. If 1, 3 or 4 is omitted from motion or in responsive pleading, it is waived
1. However, if 3 (improper venue) made after pre-answer motion,
might be decided at trial and not waived
d. 5 and 6 can be made at any time including at the trial
e. 2 can be made at any time
f. Other motions under Rule 12 (e: more definite statement, f: to strike)
may not be made later. Basically, R 12.g applies to 12.e and 12.f as
well
*** Problem 9 on p.453 (useful review)
2. D’s answer requires more specific pleadings than a general denial if such
an answer would better serve justice (R 8 b): when a pleader intends to
deny only a part, he should note that part and affirm the rest.
3. Examples:
a. The general answer is insufficient: Zielinski v. Philadelphia Piers,
Inc. (pier accident)
1. Failed to aver specifically that P had sued wrong D and therefore
let SOLs run.
2. Court said done in bad faith since insurance will pay either way and
by allowing SOLs to run, would avoid paying at all. But no R 11
sanctions, but still held them as the liable party since they were
wrong to plead as such
F. Amendments: (R 15)
1. Timing:
a. May amend w/in 20 days after answer is served;

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b. After 20 days must have approval of party or of court

2. Results of Amendment
a. Justice: Party submitting amendment in favor b/c more accurate
picture
b. Fairness: Party opposing amendment against b/c not fair so late in
game
3. Reasons for amendment:
a. No bad faith
b. No undue delay
c. No prejudice towards other party
4. Example
1. Beeck v. Aquaslide “n” Dive Corp. (pool slide)
a. Discovered late in motions that D was not manufacturer of slide and
submitted amendment and moved for new trial. In new trial, jury
found for Ds. Problem: SOLs had run and now Ps couldn’t attack
correct party.
b. Court allowed amendment and granted new trial. AC affirmed.
c. Bundy says that DC abused its discretion

III. Discovery
A. Six forms of Discovery (generally):
1. Documents:
a. broad, includes videotapes, computer records, all items with recorded
information on them
b. Can be obtained against non-parties via subpoenas
2. Interrogatories: (Zielinski case)
a. Can only get against another party
b. Limit of 25 but can be relaxed by judge
c. Addit considerations:
1. asking questions can get other side to work for you.
2. difficult if questions not so straightforward b/c can’t follow up
3. Depositions:
a. Request for expert testimony (R 30.b.6)
b. Range of objections much narrower b/c court not there to sustain them.
However, lawyer may simply advise client not to answer
c. Additional Concerns:
1. Most valuable when lawyer questions witness under oath
2. Very expensive
4. Physical Exams:
a. Only for party and family members (+ employees in CA)
b. Physical condition must be in controversy
c. Must have good reason for psych exam
d. If you want report given to other side about you, you must give up your
own report
5. Request to Admit:
a. Party can be requested to admit certain things

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6. Mandatory Disclosures
a. Must provide all information related to the pleading with particularity (R
26.a)
b. Two issues:
1. was it relevant
2. was pleading particular?
B. Relevance:
1. A party is entitled to discovery, not only of material which is relevant and
admissable at trial, but also of information which “appears to be
reasonably calculated to lead to the discovery of admissable evidence.” (R
26.b.1)
2. Examples:
a. Information Relevant: Blank v. Sullivan & Cromwell (gender
discrimination in firm hiring)
1. P asked for information in interrog re: numbers of women made
partner in firm. TC said not relevant to hiring practices of women.
2. Court said was relevant as it would “lead to discovery of admiss
evidence”
b. Information not Relevant: Steffan v. Cheney (homosexual discharged)
1. P discharged b/c statement that he was a homosexual. Then
refused to answer interrogatories regarding homo activities claiming
it was not relevant
2. Court held information was not relevant since not used to dismiss.
If wanted to try him under this, must pursue separate action.
3. PolNote: Current Mil policy is that status is grounds for acts, and
therefore grounds for dismissal
C. Attorney-Client Privilege
1. Right not to produce something for various reasons:
a. 5th Amendment: no self-incrimination
b. ACP
c. Doc-Patient Privilege
d. Marital Privilege
e. Priest-Penitent Privilege
2. ACP (five parts to rule)
a. oral, written, sign-lang, etc.
b. confidential
c. lawyer acting in professional capacity
d. to the client
e. giving/getting legal advice
3. Possible exceptions to ACP:
a. If witness deposed cannot recall? NO!
b. If info is otherwise unavailable or there is “substantial need” (Example:
witness is dead?) YES!
4. Example:
a. Upjohn Co. v. United States (illegal foreign contribs)

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1. Upjohn sent questionnaire to employees and this questionnaire was

requested by IRS. Claimed it was protected by ACP but AC said
no b/c not “upper management.” Also, magistrate said “substantial
need” important.
2. SCt said all company was client. Also, clients were still alive and
could be deposed, so no substantial need. Therefore ACP still
protected communications.
5. PolNote: Why enforce ACP?
a. Encourage full and frank conversation twixt atty and client (at all levels
of mgmt)
1. lower employees have valuable info
2. good for society b/c if people know the law, then will comply with it
3. if no ACP, atty won’t have info either b/c won’t talk with client
frankly
b. Encourage lawyers to do their own legwork. ACP doesn’t extend to
facts, only to communications.
D. Privacy (broad since ACP is so narrow)
1. Key question is whether person opposing discovery would suffer from
annoyance, etc. (e.g. good cause for production)
2. If fear that privacy may be violated, can invoke a protective order (R 26.c)
3. No privacy to prevent production, but yes on privacy to justify protective
order:
4. Seattle Times Co. v. Rhinehart (cult newspaper articles)
a. D sued for article slandering his organization. P requested information
that D feared it would publish. He claimed privacy. Lower Court said
no privacy, must produce.
b. Upper court said privacy did not prevent production, but did justify
protective order considering nature of Ps.
5. Difficult questions: abortion led to hysterectomy problem:
a. Clinic wants info re woman’s mental state, father, etc. to establish
exclusivity of their causation
b. Woman wants info from clinic about other potential victims.
***Are these two cases barred by privacy or not? Might be relevant, might
not.
E. Rule 35: Physical and Mental Exams
1. Rules of game: (R 35)
a. limited to parties or family members (employees in CA)
b. Phys/mental condition must be in controversy
c. “Good cause”
2. Possible exceptions that do not work
a. parties on opposite sides? NO!
b. to plaintiffs only? NO! (altho dissent argues P did choose to be in court,
not D = inviolability of person)
3. Example: Physical/Mental Exam not needed: Schlagenhauf v. Holder
(bus driver hit tractor trailer)

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a. moved for physical, mental, opthamology and neurological exam of

bus driver. TC granted all of these
b. SC said this was bad faith and none of other exams were needed.
Rather, only opthamology was needed, but since they were obviously
made in bad faith, he didn’t give them any exams at all.
F. Work Product
1. May not obtain products created by atty in preparation for trial except if
there is a substantial need for the materials in preparation of the party’s
case and that party is unavailable without undue hardship. (R 26.b.3)
a. What about memoranda:
1. Fear it will disclose atty’s thought processes
2. Might want to edit memoranda to take out thoughts
b. What about lawyer’s beliefs?
1. Example of bartender telling him the captain of tug was drinking
2. Don’t have to tell since this would reveal lawyer’s thought processes
and impressions.
2. When claiming WP protection, party shall expressly state nature of
documents and their justification for protected status. (R 26.b.5)
3. Exceptions to Work-Product
1. Witnesses are dead
4. Why do we have work product?
1. Nature of adversarial system
2. Info is easily accessible: do your own work.
5. Example: Hickman v. Taylor (tugboat sank)
a. Atty issued interrogatories and opposing counsel requested these. DC
compelled discovery.
b. AC and SCt overruled saying it was work-product.
G. Expert Testimony
1. Can be called in whenever it will assist the trier of fact to understand the
evidence.
a. must be qualified
b. must be relevant
2. CALLED AS WITNESSES AT TRIAL = subject to substantial discovery (R
26.a.2)
a. this is an initial disclosure, usually 90 days prior to trial
b. must provide report with opinion in them, hourly rate, other cases
witness in
3. NOT CALLED AS WITNESSES AT TRIAL = not subject to discovery (R
26.b.4.B)
4. Why these rules?
a. Want attys to do their own work
b. Positively encourages expert testimony by limiting demands on them
5. Examples
a. Expert information barred: Group Insurance Co Expert Lawyer:
(retained in anticipation of trial, but will not be expert witness at trial)
can get info from his work?

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1. reviews policy of D every year (yes, just fact witness)

2. interviewed witnesses that now had a stroke (yes, exceptional
circumstances)
3. provided expert advice (no, b/c of rule)
b. Expert information compelled: Thompson v. Haskell Co. (p claimed
mental injuries)
1. P claimed mental injuries and Ds requested reports of her
psychiatrist. She refused saying expert testimony was barred.
2. However, exceptional circumstances since he alone knew her
mental state at that time. Plus, R 35 is satisfied since P brought
mental state into contest.
c. Expert information partially barred: Chiquita Intl Ltd. v. Int’l Reefer
(bananas damaged in delivery)
1. P not planning to call their expert to examined boat in Europe. Ds
want his opinion b/c only he examined at that time.
2. Court said no reason why D could not have their own witness
examine boat at that time. However, found that there was no other
way to get info, so allowed access to facts in file. Partially
exceptional circumstances.
H. Abuse and Sanctions
1. Rule 37: Sanctions when documents are not produced
2. Local standards should at least have some influence, but adherance to
federal rules should take precedence.
3. Example:
a. Sanctions imposed: Pollock v. Fisons, Inc. (smoking gun drug letters)
1. Two smoking guns not provided:
a. Dear Dr. Letters: when didn’t know, intent was good, but after
knew, intent was to cover up = bad faith. Worse was when they
lied by saying they had produced all relevant docs
b. Memorandum regarding toxicity of Theo: not produced at all
2. Court held that this behavior was unethical and sanctionable
4. PolNote: How do we avoid this behavior in the future?
a. Transform adversarial system? Not likely
b. Mandatory disclosure? Doesn’t work, as we see in Fisons
c. More judicial management is key; liberal use of sanctions
I. Introduction to Discovery Exercise (see brief)
1. Mandatory Disclosure: Rule 26 (a)
a. if pleaded “with particularity” then have to disclose names of witnesses
and documents (R 26.a.1 and a.2)
1. Can be creative with word “documents”
2. But if fail to produce documents at appropriate time, may be barred
from bringing it to trial later (R 37.c.1)
3. If need documents from those that aren’t parties to action, can use
“subpoena” (R 45.a.1.c)
b. computation of damages and insurance agreements do not have to be
pleaded with particularity but must be produced.

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2. General Disclosures: Rule 26

a. If move for depositions prior to initial disclosures, this is premature and
party can move to bar it or even sanctions (R 26.g.3)
b. If party seeks to depose witnesses before substantial ev has been
gathered, this might be unproductive since it will have to be done again
later. (R 26.b.2) They can then limit discovery. (R 26.c)
c. ACP protects communications between client and attorney (R 26.c)
d. All claims of privilege must be specifically enumerated. (R 26.b.5)
3. Interrogatories: Rule 33
a. Interrogatories may only be served on parties
b. Limit of 25, but court may allow more if need shown
4. Depositions: Rule 30
a. Experts called to depose are only required to answer questions about
which they are experts. (R 30.d.1)
1. If this takes place, lawyer may limit scope and manner of deposition
(R 30.d.3)
b. Witnesses may also not have to testify to preserve ACP (R 30.d.1)
1. If later find that testimony is was not protected by ACP, can compel
production. (R 37.a.2.B)
5. Physical and Mental Exams: Rule 35
a. if condition is in controversy, court will likely grant exam (R 35.a)
b. Only can be granted if person is (a) party to action or (b) under legal
control of party
c. Only can be granted if good cause (R 35.a)
d. Examinee is entitled to see exam report (R 35.b.1)
e. If Examinee has their own reports, other party is entitled to these as
well. (R 35.b.1)
f. Physical exam by agreement of parties is under same rules as that
ordered by the court. (R 35.b.3)
g. If can’t get exam from party, can depose physician as long as he is
going to be called as a witness at trial. (R 26.b.4.A)
6. Requests for Admissions: Rule 36
a. OK not to admit as long as there is reasonable grounds for your lack of
admission (R 37.c.2)
1. Hearsay or questionable witness testimony is reasonable grounds
b. Any admissions cannot then be used in a new action against D (R
36.b)
7. Sanctions: Rule 37
a. If document is relevant and is not protected, can compel disclosure (R
37.a)
b. if party fails to disclose witness in initial disclosures, they cannot then
call them at trial. (R 37.c.1)
c. if party fails to disclose witness in initial disclosures and other party
finds out, they can be sanctioned for not disclosing them (R 37.b.2)

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IV. Judge and Jury

A. 7th Amendment: Right to Jury Trial
1. Text of Amendment: In suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall
be preserved, and no fact tried by a jury shall be otherwise re-
examined in any Court of the United States, than according to the rules
of common law.
2. 6th Amendment: Rt to Jury Trial in criminal prosecutions.
3. Jury trials only granted for suits at common law
A. Difficult to determine if falls under common law b/c many situations
didn’t exist in 1791.
B. Generally, a specific remedy/form of relief was equity. Examples of
exceptions include:Replevin (legal), Ejectment (legal).
C. Common law actions generally included most actions for damages;
Examples of exceptions include injunction or restitution, both of
which were classically equitable because the remedies sought were
only available in equity. However legal theories re: injunctions
might be brought in either setting: damages for a nuisance was
legal, but injunction to stop the nuisance was equitable.
D. If unable to determine from type of action, look at remedy sought. If
monetary, will most likely be common law with exceptions noted
above.
4. Example: Chauffeurs, Teamsters & Helpers v. Terry (workers sued
Union and wanted jury trial). Presented analogies like common law
(atty malpractice) and equity (arbitration/trustee). Court accepted
trustee but focused more on issue: monetary damages, which are
always legal question.
B. Right to Juries in complex cases
1. Due process DOES preclude trial by jury when a jury is unable to
perform this task with reasonable understanding of the evidence and
the legal rules.
2. Also, example of Chancelor’s jurisdiction extending to cases where too
many actors for jury to understand.
3. Examples:
a. In re: Japanese Elec. Products Antitrust Litigation (complex
Japanese Electronics case): Case is clearly legal in nature (parties
agree) and should have jury. But question of complexity problem
b/c of due process.
b. Performance of American Civil Jury (eval of jury performance):
1. Overall, judges and juries are remarkably similar.
2. Four issues in complex trial of importance: trial length, volume
of ev, complexity of ev, complexity of law
1. Jury trials important b/c of black box.
Response: BUT, in complex cases, might be incorrect decision
2. Jury trials important b/c legitimacy.

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Response: BUT, in complex cases, opinion of judge important to

explain why case was judged the way it was.
3. Jury trials important b/c 12 heads better than 1
Response: But judge is more educated one than jury
4. Jury trials important b/c burdensome need to break down issues is
guaranteed in bill of rights.
5. Ability to strike jury trials will give judges discretion to sympathize
with underlying political agenda of the parties at bar.
C. Jury Selection
1. Jury Summons
a. Shall represent a fair cross section
1. But what is a category (EX: students NOT a category)
b. No citizen shall be discriminated against in jury selection
1. Violates equal protection under the law (5th Amendment?) and (IF
STATE ACTION) violates 14th Am rights of excluded juror.
2. three steps employed to determine claim of discrimination:
a. Prima facie evidence of discrimination
b. Response of atty that not discrimination b/c…
c. Judicial determination of validity of explanation relative to prima
facie evidence
1. When looking at (b), must eval if it is “probable” reason
2. If not probable reason, look at impact it will have on jury
a. if those that will replace are also black, problem with p.f.
ev
b. if based on beliefs that are racially based, must bar strike
3. PolNote:
a. Farther one goes questioning peremptories, more one destroys
the point of them
b. Other system of challenge for cause is not perfect either
c. Also, if eliminat perempts and expand Voir Dire, might create
unreasonable costs
d. Finally, juries will NEVER be totally representative even if
discrim is eliminated.
c. Those who cannot serve on jury:
1. Exempt: occupational classes, safety personnel
2. Excused: Active service, fire/police personnel, govt employees
3. Ineligible: under 18, no s/w/r english, physical/mental handicap,
charge pending against in criminal case
4. Excused by court b/c: undue hardship, impartiality, peremptory
challenge, good-cause, secrecy threatened
d. Process:
1. Questionnaire sent out according to mailing addresses from DMV,
voter registration, etc. These are returned and eligibility is
determined
2. Summons sent out by random drawing when needed
3. Those that show up are the array

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4. Those that are selected from array are the panel

e. Challenging compliance
1. in criminal case: before VD begins or w/in seven days after
discovers it
2. in civil case: before VD begins or w/in seven days after discovers it
2. Challenge-for-cause
a. Atty seeks to convince judge that juror is not qualified to serve
3. Peremptory Challenges
a. Atty uses their own intuition regarding jurors, unfettered ability to
determine who decision-maker will be.
b. Usually limited to three
4. Examples:
a. Batson case: juror discrimination based on race
b. JEB v. Alabama: juror discrimination based on gender
***Batson and JEB showed that generally, elimination b/c of
discrimination is not acceptable. If allowed attys to use any other
excuse besides race, would nullify point of Baton ruling.
c. Hernandez v. New York:
1. Defense counsel excused four latinos. Prosecution argued this
was prima facie evidence of discrimination.
2. D counsel explained that he felt they would not depend on official
English translation and would rely on Spanish testimony. He based
this on their attitude during Voir Dire, which judge determined was
valid excuse for using peremptories.
d. Edmonson v. Leesville Concrete Co:
1. Black man hurt on job. Defense struck only two black jurors.
Judge said Batson didn’t apply to civil proceedings. P won, but got
small recovery.
2. Court held that was wrong to strike jurors since third party
discrimination prevented by constitution. Also, violation of due
process since state action. (debatable)
e. Bundy Hypo 2 (removal of black jurors)
1. Theories based on racial studies NOT acceptable, even if not racial
hatred.
2. Dreadlocks: OK, if real reason, but might be disproportionate
f. Articles on Minority Representation on juries:
1. Very poor in many regards.
2. System perpetuates this underrepresentation
3. Underrepresentation or lack of representation has large effects on
civil and criminal case outcomes
D. Directed Verdict (Judgment as a Matter of Law)
1. Rule 50: No way any reasonable jury could find for other side
a. Granted if no legal basis for claim
b. Made before sumission to jury
c. If no later than 10 days after submission to jury and

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1. verdict was returned, may (a) allow verdict to stand, (b) order new
trial, or (c) direct a verdict as a matter of law.
2. no verdict was returned, may (b) order new trial or (c) direct a
verdict as a matter of law.
2. If facts are not disputed, judge usually decides since it is a legal question
3. If facts are in dispute and both parties provide credible witnesses, must go
to jury b/c it is a dispute of facts.
4. Burden of Production met? Enough to go to jury
5. Burden of Persuasion met? Enough to win (depends on type of case)
a. Criminal: without a reasonable doubt
b. Civil: more probable than not
c. In between: clear and convincing
6. Why? If no evidence that jury could find for party, then it might be illegal if
they do so.
7. What evidence should judge consider:
a. all evidence for party that is opposed to directed verdict
b. just evidence that has been reasonably proven for party moving for
directed verdict
8. JMOL: replaces two previous motions:
a. Directed Verdict: judge instructed jury to find a certain way.
b. Motion JNOV (Judgment notwithstanding the verdict/nonobstante
veredicto): after jury returned verdict and judge doesn’t agree.
9. Pennsylvania Railroad v. Chamberlain (man killed by train)
a. Ds witnesses were on car behind and said they didn’t hit him. P’s
witness was 900 feet away at awkward angle, did’nt see collission, but
heard crash, and claims P was knocked off and killed.
b. Court held that P’s witness was not credible enough to meet burden of
production. Bundy says this might not have been correct, but depends
on interpretation of witness’s credibility. Technically, if dispute of fact,
it should go to a jury.
E. Summary Judgment
1. Rule 56:
a. Granted after pleadings and discovery
b. Granted if two criterion are met:
1. no genuine issue as to any material fact and
2. moving party is entitled to judgment as a matter of law.
c. D may move at any time. P must wait 20 days after filing complaint.
2. Two ways to pierce the Summary Judgment:
a. Affirmative proof that other side’s arguments are false
b. Analysis of other side’s arguments and demonstration that they are
false.
3. Bundy Handout
a. Most Common Form = Against Party with Burdens
1. R.56(c) = affirmative showing that no material issue of fact is
present. If no showing, D doesn’t have to do anything, but can just
pierce pleading via 2(b) above.

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***Policy against SJs

a. Trial is best way to measure evidence
b. Parties will use SJ to harass opponents
***Policy favoring SJs
a. Imposing such a burden makes it too difficult to get rid of
meritless claims
b. How to obtain SJ without Burdens (D seeking SJ)
1. Affirmative evidence that negates critical factual element of claim
2. Point to absence of evidence to support non-moving party’s
position
***Policy shift:
a. reduced enthusiasm for trials as dispute resolution mechanisms
b. rising concern with costs of litigation
c. some risk that allowing such motions will allow more latitude for
harassment
c. How to defeat SJ with Burdens (P against SJ)
1. Must show that they have or WILL have evidence at trial
1. Look to materials on file, get new materials, ask for +
discovery under R.56(f)
2. Material doesn’t have to be in admissable format R.56(e)
2. What if no additional evidence?
a. Normally, Judges only accept 1 but not 2(a) or 2(b)
***Policy in favor: making non-moving party get ev is good to verify
claim’s merit
***Policy against: lawyers can verify claim’s merit or wouldn’t take it
to trial
b. Four judges in Celotex said could win by naming witness and
what they would say even if witness didn’t exist
c. Two alternatives if no additional material available or likely to be
available:
1. hope witness changes his story at trial
2. discredit witness via demeanor\
3. How much ev necessary to defeat SJ?
1. If ev is there, easy to win
2. If relying on c(1) or c(2), not likely to win
d. How to obtain SJ with Burdens (P seeking SJ)
1. Must introduce ev to support position b/c has burdens
a. Cannot win by pointing to lack of ev in D’s case
2. But showing for ev is even MORE demanding than Adickes case
b/c will have to show it is so strong that no reasonable jury could
disbelieve it or draw an inference adverse to P’s case
4. Adickes v. SH Kress & Co. (restaurant discrimination):
a. P didn’t provide ev that policemen were in store. D didn’t provide ev
that they weren’t. However, they claimed that since P didn’t provide
evidence that they were, should be Sum Judge.

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b. Court held no b/c although P’s sparse ev was not enough to win a trial,
it was enough to get P to a jury. Burden is placed high for those
pushing for summary judgment because 1. Ends trial so abruptly, and
2. Needs to go before a jury.
c. Alternatively, court implies that the Ds could have analyzed P’s
evidence and shown why it was not true. But they failed to do this as
well.
5. Celotex Corp v. Catrett (asbestosis exposure in DC)
a. Woman produced documentation that was inadequate to prove her
claim. Celotex did not present ev to prove otherwise, but proved that
her claim, on its face, was inadequate. Trial Court granted Sum
Judge, but AC said D did’nt meet its “Adickes burden” of disproving P’s
claims.
b. Sup Court agreed and granted new trial. Dissent noted that they
should have reinstated summary judgment since it was shown that the
evidence was insufficient to establish an essential element of the non-
moving party’s claim.

V. Preclusion and Joinder

A. Preclusion:
Claim Preclusion (res judicata)
1. The Same Claim
a. Frier v. City of Vandalia (replevin of cars): holding that
1. If same ev or factual overlap for both claims, (i.e. a
common core of operative facts) = precluded (narrow,
precludes less claims, good for P)
2. If same transaction, (i.e. matters related in time, space,
origin and motivation) = precluded
(broad, precludes more claims, good for D)
3. Ps try to split suits three different ways:
a. Theories of recovery (different theories of why P
should win)
b. Arithmetical splitting (damages)
c. Splitting of Relief (of possible claims, like Frier)
4. Exceptions to splitting rule
a. When second claim not yet ripe
b. When jurisdiction is not appropriate
b. 28 U.S.C. §1738: use Illinois law b/c if previous action in
state court, state law governs:
2. The Same Parties
a. Searle Bros v. Searle
1. Holding not same party unless bound by privity
Examples of privity
2. Especially important in this case b/c it was divorce
proceedings in which sons would have no say as parties

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a. Albright v. Reynolds Tobacco: action for injuries

and action for wrongful death = in privity b/c family
b. Jones v. Bradley: insurance co in privity with its
policy holder
c. Rynsburger v. Dairymen’s: board of ed in privity
with state atty general
Examples of no privity
a. Arsenault v. Carrier: child and mother not in privity
for child support action
b. Olivarez v. Broadway Hardware: Distributor not in
privity with manufacturer
c. Land v. Sellers: Father not in privity with his son for
wrongful acts of the son
3. After a Final Judgment
a. Usually required for claim preclusion to take place
b. If on appeal, depends on state
1. Sometimes is final even though appeal is pending
2. In others, appeal automatically voids a judgment until
final adjudication of appeal
4. After a Judgment “On the Merits”
a. Where it is on the merits:
1. Full jury trial
2. Directed Verdict
3. Summary Judgment
b. Where should not apply
1. Dismissal under Rule 37 for failure to comply with
discovery order
c. Might apply, might not apply:
1. Rule 12(b)(6): failure to state a claim
a. Should apply if lawyer did good job but there was
really no substantive claim
b. Should not apply if lawyer did poor job and therefore
claim was not adequately presented
Issue Preclusion (collateral estoppel)
1. The Same Issue:
a. Four characteristics:
1. issue of fact or law is
2. actually litigated and determined by
3. a valid and final judgment and (see above)
4. the determination is essential to the judgment
b. Criminal vs. Civil:
1. if civ first, does not preclude issue in criminal b/c higher
burden of persuasion in criminal
2. if crim first, does preclude issue in civ
2. An Issue “actually litigated and determined”

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a. Illinois Central Gulf Railroad v. Parks: holding that if two

different issues and it is not clear which one was basis for
judgment b/c jury didn’t write up an opinion, then was not
actually determined.
b. NOTE: not claim preclusion b/c ev was slightly different.
BUT, if had used transaction theory, would’ve been
precluded b/c same transaction.
c. Hypos:
1. What if new witness? No, b/c same issue. Should’ve
brought witness before
2. What if new theory? No b/c same claim. Splitting of
theories of recovery not allowed.
3. What if crim action first? No b/c higher standard in crim
action and therefore would have to retry in civ action.
3. An issue “essential to the judgment”
a. If too many findings in decision, it is not clear which one was
essential to justify the decision.
b. However, RULE is that if found on alternative grounds,
BOTH alternative grounds are binding and essential to
the judgment.
c. Halpern v. Schwartz: (bankruptcy) holding that if judgment
is based on alternative grounds, not fair to say that one was
absolutely determinative b/c
1. Issue might not have received critical analysis since there
were alternative causes of action
2. Issue was not given procedural safeguard on appeal
since would dismiss in light of other decisions.
3. Problematic for bankruptcy cases b/c
a. Victims will have to look ahead to see if they will be
precluded in future litigation for decisions made today
to cover their bases. This will obviate the point of
C.E. and actually increase litigation.
b. Victims already have no resources for additional
litigation
d. Winters v. Lavine: (Christian Science) holding that
decision based on alternative grounds bars relitigation of
any of those grounds.
e. RSTMT §28/29 says CE does not apply if:
1. first claim was not adequately reviewed
2. others listed on YZ page 851
3. COURTS REJECT RSTMT and assume it was tried
correctly and fairly the first time.
4. Between which parties? (MUTUALITY)
a. Old Mutuality Rule: neither party could use a prior
judgment as an estoppel against the other unless both
parties were bound by the judgment. This was inefficient

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and allowed for issues to be relitigated that had already

been determined in absence of one of the two parties.
b. New Mutuality Rule: An issue can be precluded against a
litigant against any other party so long as they were given a
full and fair opportunity to litigate it in previous litigation.
c. Example
1. If D loses litigation in first suit, IS bound by it in second
suit b/c had FULL AND FAIR opp to litigate it
2. If D wins litigation in first suit, IS not bound by it and will
have to face the issue against new Ps b/c might be
different in their case
d. Defensive vs. Offensive
1. Defensive, N/Mut CE: (one P, several Ds)
a. D wants to CE P from contesting issue already
resolved against P
b. GOOD b/c will force P to bring as many Ds as can in
first suit
2. Offensive, N/Mut CE: (one D, many Ps)
a. P wants to CE D from contesting issue already
resolved against D
b. BAD b/c will increase litigation. Ps will “wait and see.”
If previous P wins, they get to CE issue. If they lose,
P can retry it themselves.
e. Parklane Hosiery Co. v. Shore: (sharehold info) holding
that offensive, N/Mut CE is usually bad, but in a situation
where Ps cannot join together and/or where D had
opportunity to litigate it fully and fairly, it’s OK.
f. State Farm v. Century Home Components: holding that
when there are incongruous results in prior trials offensive
n/mut CE is bad.
***NOTE: if only one result, can usually CE, but if many
results and they differ, cannot do so.
g. BIG EXCEPTION: US Government. If it loses, it still gets to
dispute the issue in future suits.
5. Exceptions to Issue Preclusion
1. Party against whom preclusion is sought could not, as a
matter of law, have obtained review of the judgment in the
initial action.
Example: if acquitted in first judgment
2. Issue is one of law and
a. claims are unrelated or
b. law has changed in meantime
3. Differences of quality or procedure in two courts justify new
hearing of issue
4. Burden of persuasion was higher in initial action (say it was
criminal) and now there is less of a burden

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5. Clear need of new determination b/c

a. adverse impact of determination on public interest
b. action was not suffic foreseeable at time
c. party did not obtain full and fair adjudication in initial
action
B. Joinder
1. Compulsory vs. Permissive:
a. Permissive: can usually bring as many claims that involve the same Ps
and same Ds
b. Compulsory: want to consider effects of preclusion
2. Joinder of Claims (RULES 13/18)
1. Rule 13: Counterclaim and Crossclaim
a. Compulsory Counterclaims: required by D so long as
1. involves same transaction or subject matter and
2. does not require third-parties over whom court lacks jurisdiction
b. Permissive Counterclaims
May issue counterclaim that is same subject matter but not
necessarily same transaction
c. Counterclaims Exceeding Opposing Claim
May exceed amount sought in original claim
d. Counterclaim against US
Does not enlarge limits on counterclaiming against US
e. Counterclaim maturing or acquired after pleading
May be presented as supplemental pleading
f. Omitted counterclaim
If by negligence or oversight, court may allow via leave to amend
g. Cross-claim against Co-Party
so long as subject matter and same transaction or counterclaim
related to property that is subject matter of original action.
h. Separate Trials; Separate Judgments
Courts can sever them off
2. Rule 18: Joinder of Claims and Remedies
a. Joinder of Claims:
1. may join as many claims as the party has against opposing
party
2. ALTHOUGH, per 42(b), a judge may sever off other claims as
he so desires
b. Joinder of Remedies; Fraudulent Conveyances
Different claims (sequential) by the same party that depend on one
another may be brought together, but the outcome of the second
will depend on the outcome of the first
3. by Plaintiff
1. Fed Rules
a. Not REALLY compulsory, but Ps will want to do so b/c they will
be precluded otherwise

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2. And jurisdiction
a. If Question on this, see p.894 and §1367
4. by Defendant (counterclaims)
1. Plant v. Blazer Financial Services: (TILA) holding that
counterclaim was compulsory. Applied four tests for compulsory
counterclaims:
a. Are issues of fact and law reaised by counterclaim and claim
largely the same?
b. Would res judicata bar a subsequent action on D’s claim absent
compulsory counterclaim rule?
c. Will same ev support or refute P’s claim as well as D’s
counterclaim?
d. Is there a logical relation between claim and counterclaim?
****If affirmative answer to any one of these, then will be
compulsory counter-claim.
Court in Plant chooses #4: logical relation
3. Joinder of Parties (RULES 14/20)
1. Rule 20: Permissive Joinder of Parties
a. Permissive Joinder:
All Ps who seek relief against D, even if severally, may be joined.
All Ds who are sought relief from P may be joined together, even if
severally.
b. Separate Trials:
May separate out if will be embarassed, delayed or put to expense
by inclusion of party against whom the party asserts no claim and
who asserts no claim against the party.
2. By Plaintiffs
1. Mosley v. General Motors Corp.: (blacks/women) holding that
two rules are applicable to joinder of parties:
a. Same question of law or fact (in this case discrimination)
b. Same transaction or series of ocurrences (in this case firing,
promotions, etc.)
2. BUNDY disagrees w/this holding:
a. not really same issue
b. not really same transaction: different times, different witnesses
3. Rule 14: Impleading: Third-Party Practice
a. When D may bring in third party:
At any time so long as third-party will owe them part or all of the
recovery amount (derivative claims: contribution or indemnity)
b. When P may bring in third party:
Same as w/D
c. Admiralty and Maritime:
See section if needed p.38

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4. By Defendants: Third-Party Claims

1. Watergate Landmark Condo Assoc v. Wiss: (leaky roof) holding
that per Rule 14, is OK if they owe you all or part of recovery
sought against you, but not to exculpate guilt completely.
2. Key to note:
a. Federal Law vs. State Law: in states, not usually so harsh. Fed
wants to allow P to control as much of process as possible.
b. if original claim had been so broad as to not specify what was
problem, then Condo assoc (designers) could implead Brisk
(installers).
c. Just because can bring a party does not mean jurisdiction has
been satisfied.

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