I.

Pleading Requirements
II. Requesting a Jury
•Two ways to get a jury: (1) 7th Amendment; (2) Statutory grant
•Congress may grant juries but may no restrict. Could be unconst
•Once one party requests jury, other party does not have to request
•Juries add another source of power, other than judge to courtroom.
•Only if: (1) at least one party asks for jury; AND (2) it is a case of the sort in which the
parties are entitled.
A. Historical Reconstruction and the Seventh Amendment
i. Proponents for jury trial saw it as important representation in govt
ii. Seventh 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 otherwise be reexamined in any
Court of the United States, than according to the rules of the common law.
1. “Right to jury trial clause”—“suits at common law… right of trial
by jury shall be preserved”:
2. Whether a given claim lay within the jurisdiction of the common
law courts in 1791. If so? Jury!
a. Injunctive relief=equity=no jury
B. General Prudential Rule: seeks to identify the rights/issues involved and remedies
sought in a merged lawsuit that can be characterized as “legal,” and assure jury
trial if desired
C. Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry
i. •Whether an employee who seeks relief in the form of back pay for a
union’s alleged breach of its duty of fair representation has a right to trial
by jury.
ii. Union files for motion to strike the jury, gets interlocutory appeal;
certified it to 4th circuit. Initially, Terry v. Mclean and Union, Mclean
dropped, they consisted
iii. •Truck drivers are asking Sup. Ct. for $ for breach of contract
•Also asking for Trial by Jury, through breach of contract
iv. Arguments:
1. Union:
a. Resembles a suit brought to vacate an arbitration award
b. ~Trust beneficiary against trustee for breach of fiduciary
duty.
i.
2. Drivers:
a. Like an attorney malpractice case
•Unions argue analogous to suit brought to vacate arbitration award.
v. Holding: Entitled to jury by 7th Amendment.
1. Compare the statutory action to 18th century actions;
2. Examine the remedy sought and determine whether it is legal or
equitable in nature.
a. Seeking back pay, which is legal.
vi. Concurrence, Brennan: reject historical test and look solely at remedy
 sought.
vii. Concurrence, Stevens:
viii. Dissent, Kennedy:
ix. Affirmed the judgment of the appeals court. They are going to get a jury,
but its 7 years later.
x. Implications:
D. Patent Infringement: originally given to juries, but in Markman v. Westview court
reanalyzed and reduced jury’s scope.
III. Multiple Count Complaints
A. Amoco Oil Co. v. Torcomian
i. Were the components of Amoco’s Claim Legal or Equitable?
ii. Were the components of ∆’s counterclaim equitable or legal?
iii. If the right to jury trial was erroneously denied to ∆s, was it a harmless
error?
iv. District court denied jury, found for Amoco at bench trial, ∆s appeal.
v. They get a jury trial on all issues where the judges findings could have had
an effect on issues that jury would decide.
vi. Amoco argues that Ejectment is equitable.
vii. Joinder of equitable and legal claim cannot take away right to jury.
viii. Under Federal law, controlling in this diversity action, ejectment actions
are legal not equitable.
ix. Judgment of district court will be vacated and the case remanded.
x. Strategic: Affects tendency to settle, plaintiff has bitter judge, defendant
now has unpredictable jury.
xi. Issue of creditability, so could not have been a harmless error
xii. Federal Question claim around trademark.
xiii. Amocos attorneys might have thought that the right to a jury was
substantive rather than procedural.
B. Declaratory Judgment
i. Ask court to declare the law.
ii. Under Beacon Theaters,
iii. Looking at the complaint, could an action for legal relief be granted.
C. The Seventh Amendment and the Structure of Government
i. Congress has created administrative agencies that perform quasi-
adjudication that would normally be given a jury.
ii. Supreme Court holds administrative adjudication is constitutional when
government id enforcing “public rights” that Congress has given it power
to do.
iii. Bankruptcy Courts operate without juries.
1.
D. 28 U.S.C. 1367. Supplemental Jurisdiction
i. (a) district court shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III.
Includes joinder or intervention.
1. Federal Question
 ii. Diversity Jurisdiction, no supplemental jurisdiction for
joinder/intervention if diversity requirements are met by those
supplemental claims.
iii. (c) District court may decline supplemental if: (1) new/complex issue of
state law; (2) supplemental claim predominates over original claim; (3)
original claims have been dismissed; (4) exceptional circumstances,
compelling reasons for declining.

Discovery
I. The Standard of Relevance and Spoliation
a. Modern Discovery
b. The Possibilities of Discovery
i. Relevance
ii. The Duty to Preserve Evidence: Spoliation
c. FRCP 26 (b)(1)
II. The Stages of Discovery
a. Required Disclosures—Rule 26(a)
i. Initial Disclosure: exchange categories of information that the disclosing
party may use to support its claims or defenses.
1. Names and locations of witnesses, description and location of
documents, calculations of damages, copies of insurance
agreements.
2. Must exchange w/o be requested.
ii. Identities of Expert Witnesses
iii. Lists, of witnesses, documents, exhibits to be produced at trial
b. Rule 16(b) Scheduling Conference
i. Limits time to join other parties, amend the pleadings, complete discovery,
and file motions.
ii. Can modify
c. Federal Court Mediation Requirements
i. Mediator conducts structured set of discussions to lead toward settlement.
ii. Some form of mandatory ADR is required in Federal Court.
1. What would a mediator want to know from parties?
a. 2 approaches: look at their monetary limits, or look at their
goals
2. Lockhart v. Patel:
a. Judicial Management by indirectly ordering settlement,
III. Types of Discovery
a. Interrogatories (Rule 33)
b. Requests for Admission (Rule 36)
c. Requests for Production
d. Depositions
IV. Defenses Against Discovery
a. Privilege
i. What is privileged? How do you figure out what is privileged? What is the
scope of the privilege?
1. Privilege is part of the law of evidence
2. Erie Doctrine: Whether evidence is substance or procedure.
ii. Who can assert it?
1. Π wants to talk to janitor.
a. Is janitor a party to lawsuit.
b. Under Upjohn, convo b/w janitor and attorney for
Fitchburg is protected, but facts are open.
iii. What are the exceptions to the privilege?
iv. Just because the communications are privileged, does not mean that the
underlying facts are privileged.
v. Atty client, against self-incrimination, priest-pentitent, dr-patient, and
spousal, therapist-patient.
vi. Point of privilege is to promote free communication.
vii. Privilege can be waived by
1. Failing to assert it
2. Taking inconsistent action: disclosing privileged info w/ 3rd party
viii. Upjohn Co. v. US: privilege extends beyond “top management;” all
employees can by actions within scope of employment hold serious
relevant legal info
1. Who is the client in the corporate context?
2. The “Control Group Test” protects communications by decision-
makers or those who influence them. Rehnquist says we want to
encourage frank communication between attorneys and clients.
We don’t want to just protect the top of the hierarchy.
3. The Court doesn’t establish a set rule, but it did stop the use of the
“Control Test”.
4. An alternative test is the “Subject Matter Test”, which provides
any employee with privilege as long as the matter is within the
employee’s performance of their duties.
5. Implications: corporate advantage with in house acctnt, etc. over
individuals who use outside help
6. No privilege for both sides when conversations were before
litigation was in sight.
ix. Production of a privileged document or testimony about privilged convos
operate as a waiver, and prevent the use of privilege on anything of same
subject matter, with subject matter interpreted broadly.
1. Privilege Log: when privileged docs are mixed in with non
privileged docs, must sort through and give descrip w/ sufficient
info about doc to allow requesting party to determine whether to
challenge
 2. Information age creates millions of docs that need to be reviewed.
3. Rule
x.
b. Work Product
i. Material gathered in anticipation of litigation OR
ii. Mental impressions/conclusions
iii. Hickman v. Taylor
1. QP: whether the district court erred in requiring the production of
documents obtained or prepared by retained counsel in anticipation
of litigation absent necessity or other circumstances.
a. Seeking tug boat attorneys notes of interviews of survivors
and witnesses. Definitely relevant (statements from people
who know best what happened) Falls outside of attorney-
client privilege. BUT its atty work product.
b. Witness statements: Court tells us that there may be some
way to get this information, but not on these facts. There
was no effort on the part of the requestors to get this
information themselves. They could have just gone out and
done these interviews themselves. They must show some
reason why the other attorney’s work should be available to
them.
2. Petitioner seeks reinstatement of order to produce documents and
order of imprisonment.
a. District Ct. ordered production of requested statements; atty
refused, put in jail; but stayed order pending appeal
3. The respondent refused to produce documents on the ground that
they were not subject to discovery, and were protected as
privileged matter obtained in preparation for litigation. Respondent
argued that the interrogatory constituted "an attempt to obtain
indirectly counsel's private files" and therefore production of
documents would amount to revealing the litigation strategy of
counsel.
a. Petitioner countered that the deposition-discovery
provisions of the Federal Rules of Civil Procedure were
designed to enable the parties to discover true facts and
compel their disclosure wherever they may be found.
Because discovery is to be granted liberally, the privilege
limitation must be interpreted narrowly, as prohibiting
discovery in these circumstances would aid corporate
defendants against individual plaintiffs by allowing
corporate defendants to retain a lawyer immediately,
making all subsequently collected information unavailable
to plaintiff. Individuals, on the other hand, might have to
wait for some time before retaining a lawyer, making
information collected before the retention of counsel
available to the corporate defendant.
 4. Holding: Discovery of written materials obtained or prepared by an
adversary’s counsel with an eye toward litigation may not be had
unless party seeking discovery can establish that relevant and non-
privileged facts remain hidden in an attorney’s file and where
production of those facts is essential to the preparation of one’s
case.
5. Standard Applied:
6. Circuit court reversal of production order affirmed. Doctirne
codified in 26(b)(3).
iv. Who does this Rule apply to? It applies not just to the party’s attorney,
but also the party’s consultant or other representative.
v. If someone isn’t a party to a lawsuit, they can obtain a statement that they
made previously. A party might not be able to get this statement, but a
non-party can get it for you.
1. Only if it’s signed, or a video can be got
vi. Exception to work product:
1. Produced in the ordinary course of business:
vii. Adding attorney to email or he is present doesn’t make it work product
viii. If you find great eyewitnesses, you must give up the name of who you
found, but you don’t have to give up exactly what they said.
ix.
(3) Trial Preparation: Materials.

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents
and tangible things that are prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other party’s attorney, consultant,
surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials
may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its
case and cannot, without undue hardship, obtain their substantial equivalent by
other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it
must protect against disclosure of the mental impressions, conclusions, opinions, or
legal theories of a party’s attorney or other representative concerning the litigation.

(C) Previous Statement. Any party or other person may, on request and without the
required showing, obtain the person's own previous statement about the action or its
subject matter. If the request is refused, the person may move for a court order,
and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:

(i) a written statement that the person has signed or otherwise adopted or
approved; or

(ii) a contemporaneous stenographic, mechanical, electrical, or other recording —

or a transcription of it — that recites substantially verbatim the person's oral
 statement.

Communication with independent contractor

A communication made between privileged parties in confidence for the purpose of legal
advice of consultation assented and not waived.

Confidentiality, Privacy, and the First Amendment Physical and Mental Examination
• Sensitive question: 26(c) seeking a protective order
a. Doesn’t preclude you from making other arguments, such as irrelevance.
• system seeks to shield from excessive discovery. Discovery can be used to harass
• Stalnaker v. Kmart Corp.
a. QP: Whether to enter protective order so that they cant ask questions about their
voluntary sexual history.
i. She wants to depose other employees.
b. Posture: Before Magistrate Judge. Kmart has made a motion for a protective order
for other employees who may have had a relationship w/ manger. Plaintiff wants
depos, opposes motion.
i. Magistrate Judges decision is not necessarily final. You can appeal order
from magistrate judge within 14 days to district judge.
ii. Its Defendants motion, but it seems it should be the witnesses!
c. Arg.s:
i. π claims sexual harassment;
ii. ∆ says that any voluntary romantic or sexual activities of witnesses are
irrelevant. And will invade their privacy rights. Embarrassment,
humiliation, and invasion of privacy outweighs probative value.
iii. π says potential harassment; other witnesses may possess relevant info.
1. She would agree to protective order preventing dissemination of
discovery to third parties. And that would alleviate privacy
concerns.
d. Holding: Sexually history not related to allegations against Kmart are irrelevant.
Any sexual harassment by Graves is relevant. Inquiry about voluntary
relationships with Graves to the extent that they show any conduct on his part to
encourage, solicit, or influence any employee is okay.
e. Standard: Can the magistrate judge’s order be appealed? The discovery order
isn’t dispositive of anything except what’s before you. So generally, there will be
no appellate review of this kind of discovery dispute. But the statute that creates
the magistrate judge’s jurisdiction does have an out for interlocutory review of
matters that are “clearly erroneous”. If the magistrate makes a really bad mistake,
you can ask the district court to review and reverse that mistake.
f. Next?
g. Straetic implications: Incentive to settle,
• Physical and Mental Examinations
a. Rule 35
 b. When mental or physical condition is in controversy and upon a showing of good
cause.
c. Schlagenhauf v. Holder
i. Greyhound collides with tractor; passenger sues everyone; bus and tractor
cross-claim; tractor-owner wanted—and was granted—vision,
neurological, psychiatric, and internal medicine exams.
ii. Divided Supreme Court vacates ruling, says if anything vision is needed.
iii. Dissent: chances are good driver had some physical, mental, or moral
defect. Blind or crazy?
iv. Rule 35 broader than just plaintiff’s rule. Rule 35 not a carte blanche to
provide any conceivable type of exam.

V. Expert Witnesses
a. Fact witness can testify
i. Generally not allowed to have opinion testimony
1. But can say car was going fast, she was drunk
b. Expert witnesses-rule 702-if scientifics technical assists trier of fact to understand
evidence.
c. 2 kinds of experts:
i. Testifying
1. Must give up names and report w/o any request
a. Expert only retained to provide expert testimony
b. Employee expert who works for company to regularly
provide expert testimony
ii. Non-testifying
1. Retain an expert
2. Informed consultation
3.
iii. Consulting
1. Can only be discovered in exceptional circumstances
d. Diana Cole Case: Possible experts
i. Fitchburg State counselors
ii. Dr. Murray
iii. Dr. Saviano
iv. Ms. Oppenheim
v. Others?
1. Any other consulting witnesses
e. Thompson v. The Haskell Co.
i. QP: Is the report discoverable?
ii. Posture: Before Magistrate, Plaintiff seeks Protective Order to shield from
discovery psychological records related to her from Dr. Lucas
iii. Arguments:
1. Π contends R. 26(b)(4)(b) that dr. was hired only for trial
preparation
2.
iv. Holding: Report is discoverable.
 1. Highly probative
2. ∆ could not obtain info by other means
v. Standard?
vi. Happens Next? Motion denied
f. Chiquits Int. v. MV Bolero Reefer
i. QP: Whether Reefer can depose Winer and get his file.
1. He was an expert because he was hired in prep for litigation.
ii. Posture: Magistrate. Chiquita wants to depose Winer and get his file he
assembled after his inspection.
iii. Arguments:
1. Chiquita claims Winer is a non-testifying expert under 26b4b
2. Reefer claims he is a fact witness rather than an expert.
a. Also, even if he is an expert, exceptional circumstance b/c
he is the only one who observed vessel after incident.
iv. Holding: Winer qualifies as an expert. He was specifically engaged by
Chiquita to examine vessel in connection with claim.
1. But docs in his file that are discoverable need be disclosed.
v. Standard?
vi. Happens Next?
g. 26(a)(2):
i. Must disclose to other parties identity of any expert witness it may use at
trial
ii. Disclosure must be accompanied by written report, prepared and signed by
the witness if the witness is retained or employed to provide expert
testimony in the case
1. Report must contain: complete statement of all opinions the
witness will express and the basis and reasons for them, (2) the
facts or data considered by the witness, (3) Any exhibits (4)
witnesses qualifications (5) list of all other cases in which during
previous 4 years witness has testified (6) statement of
compensations to be paid
a. Specially retained or regular employees
2. If not required to provide written report disclosure must state
subject matter that witness will present evidence on and summary
of the facts and opinions to which the witness is expected to testify
a. Everyone else
iii. Must follow court order. But at least 90 days before date set for trial or
within 30 days of disclosure
1. Changes from previous
a. The changes, which will limit expert discovery, are
expected to reduce litigation costs by creating an
environment in which communications between counsel
and experts can be more efficient by being more open.
b. The approved amendments to Rule 26 will extend work-
product protection to draft expert reports and to
communications between attorneys and experts. Attorneys
 will be able to discuss strategies, theories and ideas directly
with an expert witness without those communications
becoming discoverable — thereby avoiding the cost of a
separate consultant. Experts will be able to revise and edit
their reports without having to go through extraordinary
measures to avoid creating draft reports.
c. Expert witnesses will be required to disclose the “facts or
data considered,” which is narrower than the current
rule that requires the expert to disclose “data or other
information considered.” In addition, the expert will be
required to disclose any assumptions relied upon, as well as
the compensation the expert received.
d. These amendments should result in more efficient
communication between attorneys and expert witnesses,
thereby reducing costs for the clients.
h. Daubert v. Merrell-Dow
i. QP: What is the standard for admitting expert scientific testimony?
ii. Posture: Dist. Ct. granted summary judgment for pharm company based
on their expert and contending that the plaintiff’s expert did not meet
general acceptance; the court of appeals affirmed; supreme ct took cert
because of split in the circuits.
iii. Arguments:
1. Π contend that the Frye test was superceded by the adoption of the
Federal Rules of Evidence.
2. ∆ contends that abandonment of “general acceptance” will cause
“free for all” of absurd experts that will confuse juries
a. court says they are too pessimistic of juries
iv. Holding:
1. “general acceptance” as reliable in relevant scientific community is
not needed for admissibility
2. Trial judge has the job of ensuring that experts testimony rests on
reliable foundation and is relevant
a. Reliability standard: experts testimony must pertain to
scientific knowledge
b. Relevance standard: must assist trier of fact to understand
the evidence or to determine a fact in issue; demands a
valid scientific connection to the pertinent inquiry
v. What standard applied?
1. Interpreted Rules as they would any statute
2. Rule 702 applies to expert testimony
3. Judge must make preliminary assessment of whether the reasoning
or methodology underlying the testimony is scientifically valid and
whether that reasoning or methodology properly can be applied to
the facts in issue.
vi. What happens next?
1. Vacated and Remanded. Goes back to appellate court
VI. Remedies for Discovery Violations
a. Delay, evasiveness, abusive discovery, buying time.
b. An anatomy of Discovery Abuses
i. Too little discovery
1. Stonewalling: when one party resists appropriate request
2. Rufusal to cooperate with justifiable discovery requests can lead to
sanctions.
a. 37(a)2A: Motion to Compel
• must confer with other side.
3. Rule 26(g):
a. Every disclosure, discovery request, response, or objection
must be signed.
b. Signing certifies that it is complete and correct
• Consistent with the rules
• Not used to harass, cause delay, or increase cost
of litigation
• Not unreasonable or unduly burdensome or
expensive
c. Judge MUST sanction
ii. Too much discovery
1. When one party seeks more discovery than the case justifies
iii. Mismatched discovery
1. When two parties have significantly unequal litigation resources
c. Zubulake v. UBS Warburg LLP
i. QP:
1. What is the scope of the duty to preserve?
a. When the duty starts?
b. What evidence must be preserved.
2. What is an appropriate sanction for party destroying documents?
3. What is an appropriate remedy for the party injured by loss?
ii. Posture: Employee is moving for sanctions against employer for failure to
preserve backup tapes containing potentially relevant emails.
iii. Args:
1. Zubulake argues that they should have been on duty earlier and
argues that the destruction was intentional/grossly negligent.
2. UBS says it was inadvertently recycled
iv. Holding:
1. Employer had duty to preserve backup tapes
2. Employer must pay costs of deposing certain witnesses
3. Denied reconsideration of cost-shifting order
4. Denied adverse inference instruction
v. Standard?
vi. Happens next?
vii. Strategic Implications?
d. FRCP 37
i. (a) Motion to Compel
 ii. (b) Failure to Comply w/ Court Order
iii. (c) Failure to Disclose, Supplement , or Admit
iv. (d) Failure to Attend it own depo, Serve answers to interogs, respond
to request for inspection
v. (e) Failure to Provide Elec. Stored Info
vi. (f) Failure to participate in 26(f) Conference
e. 28 U.S.C. 1927 Counsel’s Liability for Excessive Costs
i. Any attorney or person conducting a case in any court in the US who
multiplies the proceedings unreasonably and vexatiously [[purely to cause
annoyance]] may be required by the court to personally pay the excess
costs, expenses, and attorneys fees because of such conduct.
VII. Class Certifications
a. Rule 23:
i. (a) Prerequisites:
1. Numerosity
2. Commonality
3. Typicality
4. Adequacy of representation
ii. (b) Types of Class Action
1. Where would violate 19: joinder rules. Mass-production version of
Rule 19
2. “Injunctive relief class”
3. Everything else
iii. Certification Order
1. “at an early practicable time”
iv. Notice
1.

Communities for Equity v. Michigan High School Athletic

Assn. –

QP: Do the past and future female athletes fit as a class?

Posture: Plaintiff is making a motion for class certification
Args:
Holding: Motion granted. 23 b 2
Standard? “rigorous analysis”
Next?
Strategic Implications?

This is a pretty good illustration of how most courts deal with

Rule 23(a). This case churns through each of the categories
of the rule to see if the categories are met. That’s what the
case suggests, but the notes suggest that there is much more
of a “peek” at the merits where you decide whether you want
the case to go ahead. This is especially true with the issues
of typicality and representativeness. What’s at issue in this
case? There’s a Title IX claim that the Michigan High School
Athletic Association discriminated against female athletes.
The Athletic Association fails to sanction certain girls’ sports,
makes girls play non-traditional, shorter seasons, on inferior
dates, in inferior facilities, and with inadequate resources.
They have a bunch of complaints.

They try to certify a class of “all present and future female

student athletes enrolled in member high schools who
participate in interscholastic athletics or who are deterred
from participating in interscholastic athletics” due to
discrimination. This is typical of the way a class will be
described, which is by way of characteristics. This class is
quite sweeping. It includes present and future female
students. It includes those who participated and those who
didn’t participate because of the discrimination. The class is
limited to people who were harmed by the defendants’
conduct.

The court must decide whether this lawsuit will meet the
class characteristics. This is the sort of thing we would want
a class for because it would become moot at the time an
individual female student plaintiff graduates. So we have an
organization trying to deal with the class issues on behalf of
all of these female students.

There is no problem with numerosity here. There are lots and

lots of present and future students. There are a bunch of
common issues of law or fact. Though the different types of
complaints might apply differently to different individuals,
there must be at least one issue common to all the class
members. What about typicality? No one is probably going
to suffer all the harms. That’s why they let a community
group go forward as a collective representative. But it is
likely they will later add specific, named students who
suffered some of the specific harms listed. Also, some of the
class members might have competing interests. The remedy
that might be crafted might be good for some class members
and not others. How do we solve the problem? You can
divide the class into subclasses under Rule 23(c)(4)(B). You
could have subclasses based on people who fall into different
subcategories. How about representativeness? You wouldn’t
be part of the class if you’re not adversely affected. That’s
why you include that language: to avoid representativeness
problems. Much care goes into how you define the group!
You can define away all the legal problems if you’re careful.

There is also the MHSAA. They’ll represent the high schools’

interests directly. They will be protecting the status quo and
all of those students who are happy with the way things are
now. Wright says that as long as there’s a representative for
the status quo and one for the people who want change, you
can maintain a class action.

So the Rule 23(a) criteria have been met. This is a Rule 23(b)
(2) class because they’re seeking injunctive relief. Let’s say
that the girls lose on the merits. Let’s say a new female
student moves to Michigan later and sues independently.
They would be precluded from suing because the lawsuit
bound all future students! How can that be? That student
had no notice! The law says that the student’s interests were
already adequately represented by the parties in the lawsuit.
The future student is treated like a party, even without
notice.

Heaven v. Trust Company Bank –

QP:
Posture: 11th Circuit. Dist. Ct. concluded that π had not met
requirements of 23(b)(3)
Args:
Holding: Affirmed
Standard? Dist. Ct. can be overturned if it constitutes an
abuse of discretion.
Happens next:
Strategic Implications:

What’s happening? The plaintiff leased a car from Sun Trust

and sued later saying that they didn’t comply with disclosure
requirements.
Heaven sued for statutory damages but no actual damages.
She wanted to certify a 23(b)(3) class.
The trust company counterclaims, saying that individual class
members failed to pay their lease. This is similar to Plant v.
Blazer Financial Services, Inc. in that if there are compulsory
counterclaims, the court says you must deny the class
certification of the plaintiffs. Is this court bound by Plant?
Yes, because the Eleventh Circuit used to be part of the Fifth
Circuit! So the court must boot the case for failing to meet
the requirement in Rule 23(b)(3) that this class action is
superior to other ways to adjudicate the dispute.
This could go forward as a class, but it can’t be maintained
under Rule 23(b)(3). But the Eleventh Circuit adds its own
caveat, which is that they might have done it differently, but
the district court didn’t abuse its discretion in booting the
whole thing.

Notice that the bank wouldn’t really sue the individual

lessees because it wouldn’t be worthwhile to get judgments.
They just brought up this counterclaim as a defensive
measure. Even if the class had gone forward, the class
plaintiffs probably would have wanted to opt-out anyway!

The Rules now provide for interlocutory appeals for the grant
and denial of class certification under Rule 23(f). If the court
is wrong here, the plaintiffs have the right to get a look at
this. The suit might continue with just the named plaintiffs
and not the class. Most states are adopting rules like this.

So far, we’ve seen the rudimentary structure of the way Rule

23 works and how it’s applied in the federal courts. The Rule
has two parts: 23(a), which establishes the four prerequisites,
and 23(b), which classifies the classes into one of three rigid
categories.

Summary Judgment
Challenge to sufficiency of the evidence that a party has presented.
• Can you go to trial
• Rule 50 Directed verdict issue
•

Rule 56
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move
for summary judgment, identifying each claim or defense — or the part of each claim or
defense — on which summary judgment is sought. The court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. The court should state on the record the reasons for
granting or denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may
file a motion for summary judgment at any time until 30 days after the close of all discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support
the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may
object that the material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may
consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its
opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required by
Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials — including the facts
considered undisputed — show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to
respond, the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts
that may not be genuinely in dispute.
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief
requested by the motion, it may enter an order stating any material fact — including an item
of damages or other relief — that is not genuinely in dispute and treating the fact as
established in the case.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or
declaration under this rule is submitted in bad faith or solely for delay, the court — after
notice and a reasonable time to respond — may order the submitting party to pay the other
party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending
party or attorney may also be held in contempt or subjected to other appropriate sanctions.
b. Adickes v. SH Kress
i. At trial, π had burden of production and persuasion. On summary
judgment, ∆’s burden was to show that π couldn’t win at trial. The burdens
to prove that the plaintiff cant win would be so heavy that you might as
well try case.
ii. Respondent failed to carry its burden of showing the absence of any
genuine issue of fact.
iii. ∆ moving for SJ must foreclose the possibility that π could prevail at trial
c. Celotex Corp v. Catrett—what party moving for SJ must do
i. QP:
1. Should summary judgment be granted?
2. Was he exposed to Celotex’s asbestos?
3. Does π have evidence to show that he was exposed?
ii. Posture: Dist Ct granted Celotex’s SJ because there was no showing that π
was exposed to product. Appeals Ct. reversed claiming that Celotex must
prove that he wasn’t exposed.
iii. Args:
iv. Holding: SJ must be against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.
1. The burden on the moving party may be discharged by “showing”
that there is an absence of evidence to support the nonmoving
party’s case
v. Standard?
vi. Happens Next? Reversed and Remanded.
vii. Strategic Implications?
d. Bias v. Advantage International—what a party opposing motion must do to
defeat it
i. QP: Whether there is a genuine issue of Bias’s insureability.
ii. Posture: Bias family sued agency for not getting life insurance policy.
Dist. Ct. granted SJ to agency because estate did not suffer any damages
because they would not have been able to get policy because he was
cocaine user.
iii. Args:
iv. Holding:
v. Standard?
vi. Happens Next?
vii. Strategic Implications?
VIII. Interlocutory Appeal
a. 28 U.S.C. §1292(b) permit district court to certify interlocutory appeals from
nonfinal judgments.
i. Must certify that the order involves a controlling question of law as to
which there is a substantial ground for difference of opinion and
ii. An immediate appeal from the order may materially advance the ultimate
termination of the litigation.
 iii. Appellate court must agree
b. Why not more interlocutory appeals?
i. Exploding appellate caseloads and increased interest in interest in trial
judge management.
ii. Restricted to big exceptional cases
c. FRCP 23(f)
IX. Settlement
a. Rule 68—Offer of Judgment
i. Any party defending a claim
ii. Must be in writing
iii. Must have specific damages and costs and attorneys fees
iv. Making an Offer
1. At least 14 days before set of trial
v. Can Accept within 14 after being served offer
vi. Either party may file the offer and notice of acceptance, proof of service to
clerk of court.
vii. Unaccepted offer is considered withdrawn; does not preclude later offer
viii. After Liability has been determined, but damages not; offer can be made
at least 14 days before date set for hearing
ix. If judgment is less favorable than previously rejected offer, Offeree must
pay costs incurred after offer was made.
b. Injunctive relief settlements
i.
c. Settlements are better and faster than trials.
i. Avoid discovery
ii. Getting something is better than getting nothing
iii. Settlements control risk.
d. But deprives public of definitive adjudication that may reach beyond this case.
i. Settlements also have be technically competent.
e. Release: plaintiff agrees not to bring a lawsuit or to drop one already filed. Most
plaintiffs want money.
f.
X. Pretrial Motions and Skirmishes
a. Sanders v. Union Pacific Railroad Co.
i. Whether there was abuse of discretion.
ii. Appeal to Circuit Court for a dismissal w/ prejudice.
iii. D
iv. Affirmed.
v. Factors
1. Prejudice to defendant created by disobedience
2. And availability of lesser sanction
vi. En banc they reverse district ct.
b. McKey v. Fairbairn
i.
c. BHG v. FAF
i. Action was interlocutory under 1291
 1. Test for collateral order: outcome of this question would
2. Interlocutory appeal: controlling question of law and immediate
appeal would determine situation of litigation
ii. 1292b district ct would have to certify
d. Rule 26

Picking a Jury/ Challenging a Judge: the Importance of the Decision-Maker

XI. Rule 47
(a) Examining Jurors. The court may permit the parties or their attorneys to examine
prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties
or their attorneys to make any further inquiry it considers proper, or must itself ask any of their
additional questions it considers proper.
(b) Peremptory Challenges. The court must allow the number of peremptory challenges
provided by 28 U.S.C. § 1870.
(c) Excusing a Juror. During trial or deliberation, the court may excuse a juror for good
cause.
XII. Rule 48
(a) Number of Jurors. A jury must begin with at least 6 and no more than 12 members, and
each juror must participate in the verdict unless excused under Rule 47(c).
(b) Verdict. Unless the parties stipulate otherwise, the verdict must be unanimous and must
be returned by a jury of at least 6 members.
(c) Polling. After a verdict is returned but before the jury is discharged, the court must on a
party's request, or may on its own, poll the jurors individually. If the poll reveals a lack of
unanimity or lack of assent by the number of jurors that the parties stipulated to, the court may
direct the jury to deliberate further or may order a new trial.

In re Boston’s Children First

Thompson v. Altheimer & Gray

Jury Instructions, Directed Verdict, and JNOV

Rule 51. Instructions to the Jury; Objections; Preserving a Claim of Error

(a) Requests.
(1) Before or at the Close of the Evidence.
At the close of the evidence or at any earlier reasonable time that the court orders, a
party may file and furnish to every other party written requests for the jury instructions
it wants the court to give.
(2) After the Close of the Evidence.
After the close of the evidence, a party may:
(A) file requests for instructions on issues that could not reasonably have been
anticipated by an earlier time that the court set for requests; and
(B) with the court's permission, file untimely requests for instructions on any
issue.
(b) Instructions.
The court:
(1) must inform the parties of its proposed instructions and proposed action on the
requests before instructing the jury and before final jury arguments;
(2) must give the parties an opportunity to object on the record and out of the jury's
hearing before the instructions and arguments are delivered; and
(3) may instruct the jury at any time before the jury is discharged.
(c) Objections.
(1) How to Make.
A party who objects to an instruction or the failure to give an instruction must do so on
the record, stating distinctly the matter objected to and the grounds for the objection.
(2) When to Make.
An objection is timely if:
(A) a party objects at the opportunity provided under Rule 51(b)(2); or
(B) a party was not informed of an instruction or action on a request before that
opportunity to object, and the party objects promptly after learning that the
instruction or request will be, or has been, given or refused.
(d) Assigning Error; Plain Error.
(1) Assigning Error.
A party may assign as error:
(A) an error in an instruction actually given, if that party properly objected; or
(B) a failure to give an instruction, if that party properly requested it and — unless the
court rejected the request in a definitive ruling on the record — also properly objected.
(2) Plain Error.
A court may consider a plain error in the instructions that has not been preserved as
required by Rule 51(d)(1) if the error affects substantial rights.

Waiver—

May have constitutional right to a jury, but if you don’t ask, you’ve waived it.

Both sides draft jury instruction, get together to decide what to agree on

Whether or not jury can take notes.

Reid v. San Pedro, Los Angeles & Salt Lake RR

• Respondent=Reid; Appellant=Railroad
• QP: Should the trial court have directed a verdict for Railroad?
• Posture: Reid sued Railroad for negligently maintaining a fence and killing his cow. Reid
won and RR appeals refusal of judge to enter directed verdict.
a. In Supreme Court of Utah, Appealed from state court. Negligence is state law.
• Args:
a. Railroad: Evidence is insufficient to support the verdict because it fails to show
 where and under what circumstances the cow got upon the right of way.
b. Reid:
i. Judgment should be affirmed regardless whether gate was broken or
open.
• Holding: Verdict not supported by the evidence; trial court should have directed a
verdict for RR.
• Standard?
• Happens Next? Reversed and Remanded
• Strategic Implications?

Rule 50(a) Judgment as a Matter of Law/Directed Verdict

• when party w/ burden of production has failed to carry that burden.
• Must present motion before it goes to a jury, if you don’t , you waive it
• Judge will always, I will take it under advisement.
a. If it comes back for defendant, and he
• Then you renew your motion,
•

Penn. RR v. Chamberlain
• QP: Was directed verdict proper?
• Posture: In Supreme Ct on Appeal from Negligence case. Trial ct. gave directed verdict
for π. Court of appeals reversed.
• Args:
a. Railroad:
i. 3 employees testified that no collision occurred. Corroborated by every
other employee that could see it. This evidence would establish that no
collision occurred.
b. Plaintiff:
i. One witness, Bainbridge, wasn’t paying much attention. Saw π go past,
then other cars, then looked away and heard crash.
• Holding:
a. This was no conflict as to the FACTS.
i. Bainbridges testimony didn’t matter.
• Standard? When the evidence support either of two inconsistent propositions. A verdict
in favor of the party bound to maintain one of those propositions against the other is
necessarily wrong.
• Happens Next? Judgment of appeals court is reversed and judgment of district court is
affirmed.
• Strategic Implications?

Rule 50 Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial;
Conditional Ruling
Flawed Procedures
• impermissible argument
a. cant attack attorney on other side
• Jury misbehavior
• Impermissible evidence

Flawed Verdict

Motion for New Trial, Remittur, Additur

Rule 59. New Trial; Altering or Amending a Judgment
(a) In General.
(1) Grounds for New Trial.
The court may, on motion, grant a new trial on all or some of the issues — and to any
party — as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been
granted in an action at law in federal court; or
(B) after a nonjury trial, for any reason for which a rehearing has heretofore been
granted in a suit in equity in federal court.
(2) Further Action After a Nonjury Trial.
After a nonjury trial, the court may, on motion for a new trial, open the judgment if one
has been entered, take additional testimony, amend findings of fact and conclusions of
law or make new ones, and direct the entry of a new judgment.
(b) Time to File a Motion for a New Trial.
A motion for a new trial must be filed no later than 28 days after the entry of judgment.
(c) Time to Serve Affidavits.
When a motion for a new trial is based on affidavits, they must be filed with the motion. The
opposing party has 14 days after being served to file opposing affidavits.
(d) New Trial on the Court’s Initiative or for Reasons Not in the Motion.
No later than 28 days after the entry of judgment, the court, on its own, may order a new trial for
any reason that would justify granting one on a party’s motion. After giving the parties notice
and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason
not stated in the motion. In either event, the court must specify the reasons in its order.
(e) Motion to Alter or Amend a Judgment.
A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the
judgment.

Flawed Procedures

Flawed Verdicts

Lind v. Schenley Industries

• QP: Whether new trial was appropriate.
a. Did the judge act correctly,
• Posture: Oral Promises; Jury finds for π; ∆’s motion for new trial granted; π appeals
 • Args:
• Holding: Judge abused his discretion in granting JNOV, abused his disretion in granting
new trial.
• Basis? Great weight of the evidence is against the verdict. Miscarriage of justice.
a. If its procedural,
• Happens Next? Reversed, Remanded with direction to reinstate verdict and judgment in
favor of Lind
• Strategic Implications?

1. In determining a legal and strategic framework for

analyzing settlements, it's important to know whether the
remedies sought in the case primarily involve damages or
primarily involves injunctive relief.
2. All settlements obviously have to be drafted very
carefully and specifically. If you are a plaintiff seeking
injunctive relief, you will focus on: 1) enforcement; 2)
attorney's fees; and 3) confidentiality. If you are seeking
damages, you will want to focus on 1) the scope of
preclusion; and 2) confidentiality. (Your fees should be
addressed by your contract with your client).
3. If you are a defendant, you want to focus on the the
broadest scope of preclusion, the most broadly defined
confidentiality provisions, and make getting to
enforcement by a federal court as difficult, circuitous, and
short-term as possible.
4. Just because a federal court has jurisdiction over a
claim does not mean it has jurisdiction to enforce a
settlement. Settlements of federal court cases are only
enforceable in contract, absent certain procedural
devices to ensure federal court enforcement.
5. These devices involve getting the court to sign a
consent decree, or a consent decree by a different name,
or specifically retain continuing jurisdiction to enforce the
settlement (the length of this jurisdiction is an important
feature of a settlement agreement), or incorporate the
settlement by reference in its order of dismissal.
6. Having a consent decree signed by a judge is crucial to
obtaining attorneys fees. A Supreme Court case called
Buckhannon has ruled that to be a "prevailing party" you
have to obtain a "favorable court order" which includes a
consent decree.
7. There are ways to try the case but limit your risk, such
as High-Low settlements.
8. Know about Rule 68: only available for parties
defending claims, must be in writing, must be specific,
must be served on other party (but not with the court).
Only operates if plaintiff actually wins case--otherwise,
prevailing party gets costs under Rule 54(d).
9. When you dismiss a case as part of a settlement under
Rule 41, you dismiss it under Rule 41(a) with a stipulation
that the dismissal is with prejudice. You do not dismiss it
under Rule 41(b); only the judge does that.
10. Be aware, as an issue, of tax consequences of
settlements, especially large settlements. Think
"structured settlements." If your client is on Medicaid or
other entitlements, be aware of the impact of the
settlement on the entitlement. You don't have to know
the answer to these questions. Just be prepared to flag
the issue.

1. Judges must recuse themselves in any case in

which their impartiality might reasonably be
questioned. 28 U.S.C. 455(a). What does that
mean? What kinds of factors might be considered
in making a decision?
2. Parties can waive disqualification after full
disclosure by the judge under 455(a) but not under
any of the other grounds for recusal, such as
financial interest, prior participation in the cases
as a lawyer, or having expressed an opinion
concerning the merits of the case as a government
employee.

3. You can't disqualify a judge for just being a bad

judge, in the sense of being hotheaded, rude,
incompetent, stupid, or ruling against you.

4. Do judge shopping practice raise ethical

questions or are they just good strategy?

5. Jury selection is phenomenally important.

6. You can educate and persuade the jury in the

voire dire process.

7. You can't challenge the make up of the jury pool

once you've started picking the jury.

8. Know the difference between a peremptory

challenge and a challenge for cause. A challenge
for cause involves bias or interest in the particular
case.