Term
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Definition
| A judgment entered when 1) The defendant never appears or answers in response to the complaint; 2) The defendant makes an appearance but fails to file a formal answer; 3) The defendant fails to comply with some procedural or time requirement of the court |
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Term
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Definition
| A plaintiff in federal court may _________________ her compliant without prejudice any time before defendant serves an answer or moves for summary judgment as long as the defendant has not been unduly burdened by the plaintiff's suit. |
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Term
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Definition
| A case can be _________________ with prejudice by court order when a P does not do its due diligence, for P's failure to prosecute, for P's failure to obey court orders ‐ OR ‐ a case can also be dismissed without prejudice by court order for lack of jurisdiction, venue, or failure to join under FRCP 19. |
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Term
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Definition
| If the plaintiff meets the minimum burden to plead the case but cannot prove one of the essential elements of her claim, there no genuine issue of material fact and she is entitled to ______________ |
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Term
1) (regular, pre-trial) Judgment as a Matter of Law (formerly known as a Directed Verdict)
2) Judgment Notwithstanding the verdict (JNOV) - occurs after the verdict |
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Definition
| Two types of Judgments as a Matter of Law: (Rule 50) |
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Term
| Motion for new trial; 10 days |
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Definition
| _______ must be made with motion for JNOV and within _____ days after judgment has been entered |
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Term
1) Claim preclusion
2) Issue preclusion |
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Definition
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Term
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Definition
An issue is estopped from being re‐litigated in a new and different cause of
action between the same 2 parties when: (1) the same issue has been (2) actually litigated on an older
claim, and (3) necessarily decided for the outcome of the first suit. This is known as ________ |
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Term
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Definition
| Res judicata prevents a plaintiff from suing on a claim that has already been decided and prevents a defendant from raising any new defense to defeat enforcement of a previous judgment. This is known as ________ |
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Term
| Discovery leads to more accurate and more just results (the court said implicity in DiMichel the benefits are worth the substantial cost that the system of discovery entails) |
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Definition
| Why do we have discovery at all? |
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Term
| Yes; you can make interrogatories about an issue in either side's pleading |
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Definition
| Can each party make interrogatories into other party's pleading |
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Term
| Anything that was relevant to the subject matter of the case; only something that is relevant to claim or defense in the case |
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Definition
| Prior to 2000, you could get discovery of __________; Now you can only get discovery of something that is ________ |
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Term
1) Discovery sought is unreasonably cumulative or duplicative
2) If you had ample opportunity to obtain the information in discovery already
3) Burden or expense outweighs the benefit |
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Definition
| Court can limit discovery if: (Rule 26(b)(2)(C)) |
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Term
| True; You can get something that is not admissible evidence as long as the evidence is reasonably calculated to lead to discovery of admissible evidence |
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Definition
| True/False: You can get something that is not admissible evidence as long as the evidence is reasonably calculated to lead to discovery of admissible evidence |
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Term
| The party responding to the discovery request has to bear the cost |
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Definition
| Who bears the cost of a discovery request if one party serves the other party with a discovery request? |
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Term
| It has to be something the disclosing party may use to support its claims or defenses. So you don’t have to give up information that the other side would want to use but disclosing party wouldn’t use (Cummings v. General Motors) |
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Definition
| What if you have a document that you don’t plan on using but would be useful to the other side – do you have to disclose it? |
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Term
| Pre-trial discovery planning meeting |
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Definition
| What event occurs before discovery, under Rule 26(f) |
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Term
| No; discovery is generally supposed to be handled by the parties themselves; it's not judicially supervised |
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Definition
| Is discovery supposed to be judicially supervised? |
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Term
| Yes; the discovery planning meeting can be conducted via email |
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Definition
| Can the discovery planning meeting be conducted via email? |
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Term
- You send notice to opposing party
- If a party: other side has to show up at that time/place
- If not a party: then you have to subpoena them if you want them to show up at all |
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Definition
| If you want to take someone’s deposition – how do you ask for that? |
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Term
| False; interrogatories can only be served on parties |
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Definition
| True/False: You can serve an interrogatory to someone who is not a party |
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Term
| You write down questions and you send them to party that you want to answer them |
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Definition
| What is the procedure for sending an interrogatory to a party? |
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Term
| Yes; you send it back to the other side with an objection |
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Definition
| Can you object to an interrogatory? |
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Term
| Privileged matters, burden of obtaining information would be excessive, irrelevant to claim or defense of the action |
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Definition
| What are some common reasons for objecting to an interrogatory? |
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Term
| 10 depositions in a whole lawsuit and 25 interrogatories to any one party |
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Definition
| There is generally a limit of _____ depositions in a whole lawsuit and _____ interrogatories to any one party |
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Term
| Depositions are more costly than interrogatories |
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Definition
| What costs more money: Depositions and interrogatories? |
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Term
| False; you can ask opinion questions in interrogatories |
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Definition
| True/false: Interrogatories are limited to strict factual questions |
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Term
| Yes; without waiting for discovery request, each party is supposed to turn over certain information |
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Definition
| Are parties supposed to do anything while waiting for a discovery request? |
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Term
| No; you only have to turn over material that you plan on using in your case |
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Definition
| *Initial disclosure*: Do you have to turn over something that would be good for the other side's case? |
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Term
| Yes; you can make discovery production requests to a non-party |
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Definition
| Can you make discovery production requests to a non-party? |
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Term
Rule 34 production requests: To a party
Rule 45 production requests: To a non-party |
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Definition
| Rule _____ requests for production can only go to a party, but Rule _____ requests provides for basically the same thing for a person who is not a party |
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Term
1) Request is excessively costly/burdensome
2) Request covers privileged information
3) Information was prepared in anticipation of litigation |
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Definition
| What are three common objections to discovery requests? |
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Term
| You have to turn it over. Not turning over the document is illegal (alternatively, you could try to settle with opposing counsel) |
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Definition
| Hypo: You represent D. P files Rule 34 request for document. Document would ruin your case. What do you do? |
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Term
| Yes, although Rule 24(b)(2)(E)(i) says party must produce documents as they are kept in usual course of business (So deliberately plucking out document from usual file where it is kept is not permissible) |
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Definition
| If you have a "smoking gun" document, can you turn the document over with tens of thousands of other documents so it is hard to find the "smoking gun"? |
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Term
| No; in the "smoking gun" discovery scenario, you are not required to make note of the 'smoking gun" document? |
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Definition
| In the "smoking gun" discovery scenario, are you required to make note of the 'smoking gun" document? |
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Term
| Yes; in the "smoking gun" discovery scenario, if you usually keep your files messed up, you can turn them over that way |
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Definition
| In the "smoking gun" discovery scenario, if you usually keep your files messed up, can you turn them over that way? |
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Term
1) Physical or mental condition must be in controversy
2) Good cause must be shown for the exam
3) Court order required
4) Must be a party |
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Definition
| Examinations requirements under Rule 35: |
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Term
| Yes; Rule 35 (dealing with examinations) applies just as much to defendants as to plaintiffs (Schlagenhauf v. Holder) |
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Definition
| Does Rule 35 (dealing with examinations) apply just as much to defendants as to plaintiffs? |
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Term
| No; Rule 36 (Request for Admission) does not apply to non-parties |
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Definition
| Does Rule 36 (Request for Admission) apply to non-parties? |
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Term
| Only Rule 27 permits discovery in the absence of a lawsuit |
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Definition
| Only Rule _____ permits discovery in the absence of a lawsuit |
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Term
| Rule 27 is only for perpetuation of testimony, not pre-complaint discovery |
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Definition
| Key restriction on Rule 27 |
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Term
1) You have to show you anticipate that there will be a lawsuit
2) It has to be lawsuit that would be within court’s jurisdiction
3) The key is that you have to show that you anticipate that testimony will be lost if you don’t take deposition now |
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Definition
| Under Rule 27, what do you have to do to show court that testimony needs to be perpetuated? |
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Term
| Yes; according to the Supreme Court, work product is discoverable if you need information for case and you can't get it in any other way ("a sufficient showing of need will overcome work product doctrine exception", except for documents that pertain to the mental processes, documents of counsel |
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Definition
| According to the Supreme Court, are there circumstances in which work product is discoverable? |
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Term
| No; litigation does not have to be started for the work product doctrine to kick in |
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Definition
| Does litigation have to be started for the work product doctrine to kick in? |
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Term
| True; Rule 26(b)(3) is limited to requests for documents or other tangible things |
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Definition
| True/False: Rule 26(b)(3) is limited to requests for documents or other tangible things |
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Term
| Yes; under Rule 26(b)(3)(c), a witness is entitled to a copy of his or her own statement |
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Definition
| Under Rule 26(b)(3)(c), is a witness entitled to a copy of his or her own statement? |
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Term
| Because we believe that adversary system works best when each side prepares its own case, and incentive to do so would be damaged if each side could discovery other side’s trial prep materials, these materials are exempt from discovery except upon special showing that they have substantial need and these documents aren’t available elsewhere |
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Definition
| Rationale for work-product doctrine |
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Term
| Protects communications; doesn't put facts in communications beyond discovery |
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Definition
| Rationale for attorney-client privilege |
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Term
| Work-product doctrine is subject to an exception for a showing of need, while an attorney-client privilege cannot be overcome by showing a need |
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Definition
| Key difference between attorney-client privilege and work-product doctrine |
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Term
| Ask the question via an interrogatory |
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Definition
| One way you can get to information that is covered by attorney-client privilege |
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Term
| In Upjohn, the attorney-client privilege extends to communications between a corporation’s attorneys and nonmangerial corporate employees |
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Definition
| According to _______ (case), attorney-client privilege extends to communications between who in a corporation? |
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Term
| Investigation has to be needed for legal purposes |
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Definition
| Only limitation to extent of attorney-client privilege in corporations (Upjohn) |
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Term
| Government can investigate individual employees and ask them the same questions that general counsel asked them in questionnaire |
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Definition
| In situations such as that in Upjohn, what should the government have done to get information it was seeking? |
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Term
| Experts that you’re planning to have testify or otherwise present evidence at trial |
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Definition
| What kind of experts are you required to disclose? |
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Term
| No; if you've hired an expert but you're not planning to have expert testify, they cannot be deposed (Rule 26(b)(4)(D)) |
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Definition
| What if you’ve hired an expert but you’re not planning to have expert testify – can they be deposed? |
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Term
| Expert witnesses who are also fact witnesses are treated just like fact witnesses are |
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Definition
| What if an expert is also a fact witness? (Like Dr. Lakeman in Battle v. Memorial Hospital case) |
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Term
| Krisa v. Equitable Life Assurance Society |
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Definition
| What case did we learn in the discovery unit is now obsolete and inaccurate? |
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Term
| Attorney-client communication covers the communication itself |
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Definition
| Does attorney-client privilege protect communication, or facts in the communication? |
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Term
| Witness has died; witness is more than 100 miles away; witness is out of the country |
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Definition
| Examples of conditions that constitute unavailability of witnesses that were previously deposed (Battle v. Memorial Hospital): |
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Term
| No; you can't use deposition as evidence at trial (rules have a preference for live testimony); Rule 32 |
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Definition
| Can you present deposition of a witness as evidence instead of putting a witness on the stand, if that witness is available? And what Rule is this covered in? |
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Term
| No; something that is in a witness deposition that deponent could not say on the stand cannot be admitted into trial (Rule 32(a)(1)(B) |
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Definition
| Is something that is in a witness deposition that deponent could not say on the stand be admitted into trial? |
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Term
| Yes; deponent could die or become unavailable - so that deposition could come in at trial (You better cross-examine vigorously) |
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Definition
| If you are "defending" a deposition, should you treat it like it may be introduced at trial? |
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Term
| True; Assuming deponent is unavailable, the evidence in the deposition is as admissible as it would be if deponent testified to it live (So if you get in under one of the conditions, take what the deponent said in deposition and imagine deponent said it live in court) |
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Definition
| True/False: Assuming deponent is unavailable, the evidence in the deposition is as admissible as it would be if deponent testified to it live |
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Term
1) First you confer with the other side and you try to work it out
2) If you’re unable to work it out, move for an order to compel discovery under 37(a) |
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Definition
| Suppose you serve a discovery request and then they don’t object but fail to respond – what to do you do? |
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Term
| Court must require the party whose conduct necessitated the motion to pay reasonable expenses for making the motion |
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Definition
| What unusual rule by virtue of Rule 37(a)(5) applies? |
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Term
| Because otherwise you will be made to pay other side’s fees on motion to comply |
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Definition
| If you get served with discovery request, why do you also have incentive to respond to discovery request |
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Term
1) Judge can dismiss the action
2) Judge can strike pleadings in whole or in part
3) Judge can take certain matters as decided |
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Definition
| What if judge orders other side to comply with discovery request and they still don’t comply? |
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Term
| Rule 37(c) applies if you fail to comply with discovery request even if it was not subject of specific court order |
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Definition
| Rule _______ applies if you fail to comply with discovery request even if it was not subject of specific court order |
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Term
| No; under Rule 37(c), if you fail to disclose evidence or witness, you can't present evidence or witness at trial (this is referred to as the "automatic penalty") |
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Definition
| Under Rule 37(c), if you fail to disclose evidence or witness, can you present evidence or witness at trial? |
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Term
| You can be sanctioned for sufficient carelessness even if you don’t deliberately fail to comply (ordinary negligence might be sufficient); Cine Forty-Second Street Theatre v. Allied Artists Pictures |
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Definition
| Can you be sanctioned for sufficient carelessness re: failing to comply with discovery request, even if it's accidental? And in what case did we see this in? |
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Term
| True; the trial judge must issue a scheduling order which must limit the time for joinder, pleading, discovery, and motions (Rule 16(b)) |
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Definition
| True/False: The trial judge must issue a scheduling order which must limit the time for joinder, pleading, discovery, and motions |
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Term
- 120 days after the any defendant has been served with the complaint;
- 90 days after any defendant has appeared |
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Definition
| Rule 16(b): The judge must issue the scheduling order as soon as practicable, but in any event within the earlier of _____ days after any defendant has been served with the complaint or ____ days after any defendant has appeared |
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Term
| Real expected value = probability that you’ll win * value of case – costs of litigation |
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Definition
| Math equation that could help determine whether a party should settle or not |
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Term
| Pre-trial conference can make it clearer to the parties what the likelihood is that the plaintiff will win |
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Definition
| How can pre-trial conference promote settlement? |
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Term
| It keeps the docket moving and promotes settlements |
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Definition
| What is the purpose of the shift of a trial judge from neutral to active case manager? |
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Term
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Definition
| Old, outdated case that is the predecessor to Erie |
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Term
| When a federal court hears a diversity case, state law supplies the rule of decision. The Erie Doctrine |
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Definition
| When a federal court hears a diversity case, what kind of law supplies the rule of decision? And what is this general principle known as? |
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Term
| Yes; federal court sitting in diversity follows state statutes |
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Definition
| Does federal court sitting in diversity follow state statutes? |
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Term
| In procedural issues, federal rules should apply |
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Definition
| In procedural issues (e.g. what size paper should complaint be filed on), should federal or state rules apply? |
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Term
| Yes, a congressional statute can override the effect of Erie Doctrine (in example: Then court would have to follow statute and apply comparative negligence regime) |
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Definition
| Can a congressional statute override the effect of Erie Doctrine? (Example: What if D was actually interstate bus company and Congress has passed a statute saying that in all interstate bus accidents comparative negligence law would apply?) |
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Term
| Substantive law is what tells you the result, procedure is how you go about getting the result. Substance and procedure are not totally distinct categories – it’s more of a spectrum. Burden of proof is somewhere hazily in the middle between the two |
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Definition
| Is the question “who has the burden of proof” a question of substantive law or procedure? |
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Term
| "Outcome-determinative test" |
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Definition
| Important test regarding issues related to Erie Doctrine |
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Term
| Federal court has to follow any state rule that has determinative effect on outcome ("outcome-determinative test") |
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Definition
| Important thing to take out of • Guaranty Trust Co. v. York: |
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Term
- "Bound up": So intimately bound up with right involved that we have to apply this procedure as well because it’s so bound up with state rule
- The core of Erie is that constitution itself requires that fed court apply state substantive law
- That constitutional principle extends to things that are intimately bound up with the substantive rule of decision |
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Definition
| What is the "Bound-up" principle (related to Erie Doctrine)? |
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Term
SCOTUS:
- We have a broader policy that the fed case should come out the same as the state case
- Note the use of the word “policy” – the first point is constitutionally required but here the notion that we want cases to come out the same is just a policy (it’s not absolutely required by the Constitution) |
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Definition
| Supreme Court said that cases following Erie reflect a broader policy. What is this broader policy? |
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Term
| If there’s a strong federal policy cutting in the other direction of a state rule, you should follow the federal rule and depart from the state rule |
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Definition
| Regarding Erie-type cases, if there’s a strong federal policy cutting in the other direction of a state rule, should you follow the federal rule or state rule? |
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Term
| In Hanna, the Court mentioned that one of the points of Erie was to avoid forum shopping: We don’t want people flocking to fed court because they’re going to get better laws there |
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Definition
| What did the Court in Hanna v. Plumer was one of the points in Erie? |
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Term
| If you take the outcome determinative test from York and apply it literally, you will always be following state law |
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Definition
| Why does Hanna change the outcome-determinative test from York? |
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Term
| Federal law trumps state law only where federal law is valid |
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Definition
| Federal law trumps state law only where federal law is ________ |
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Term
| A federal rule of civil procedure is valid when it regulates procedure |
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Definition
| When is a federal rule of civil procedure valid? |
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Term
| In a doubtful case, the federal rule is valid |
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Definition
| What about federal rules that fall into a grey area and is doubtful? What if a rule could be called either substance or procedure? |
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Term
York: People thought you were supposed to ask whether outcome would have been different under state and federal rules
Hanna: The right way to apply the outcome determinative test is to ask whether the difference between the rules would effect outcome in a way that would effect P’s choice of forum |
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Definition
| What was the mistake in how the court in York used the outcome-determinative test, and how was it corrected in Hanna? |
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Term
| Erie, York, Byrd, and Hanna |
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Definition
| What line of cases constitutes the "Erie Quartet"? |
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Term
| If there is no federal directive on point, then go to Erie flowchart. Walker v. Armco Steel Corp |
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Definition
| What law do you apply if there is no federal directive on point? And what case does this relate to? |
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Term
| First use the Hanna flowchart, then (if necessary), use the Erie flowchart if necessary |
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Definition
| Which flowchart should you use first - Erie or Hanna? |
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Term
| You must think carefully before deciding of federal law is or is not on point |
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Definition
| You must think _________ before deciding of federal law is or is not on point |
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Term
| You apply federal law, if there is a codified federal directive on point, and if that directive is determined to be valid |
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Definition
| What kind of law do you applied if there is a codified federal directive on point, and if that directive is determined to be valid? (Note - that is two different tests, depending on what kind of directive it is) |
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Term
| When you’re trying diversity case in federal court, you have to maintain lively awareness of possibility that some issues will be governed by state law |
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Definition
| Bottom line of Gasperini v. Center for Humanities, Inc. |
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Term
| If a court decides it will apply state law – the next question is: Which state law? |
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Definition
| What does the Conflict of Law principle deal with (i.e. key question)? |
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Term
1) "Interest analysis"
2) "Most significant contacts" theory |
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Definition
| Two theories important to decide Conflict of Law analysis: |
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Term
| A state’s law should be applied to a case only if state has interest in the matter |
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Definition
| What is the "interest analysis"? |
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Term
| A state only has an interest to the extent one of its citizens is involved and would be protected by the law in question |
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Definition
| In the "interest analysis", how does one determine if a state has an interest in a matter? |
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Term
| In the "most signifigant contacts" theory, you should look at all of the circumstances and figure out which jurisdiction has the most significant contacts, and apply the law of that jurisdiction |
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Definition
| What is the "most significant contacts theory"? |
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Term
| The federal court should apply the choice of law principle of the state in where they're sitting |
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Definition
| If a case is in federal court and federal court determines that the case is governed by state law and the question is "Which state's law?", how does the federal court answer? |
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Term
| True; When it appears that highest state court would overrule its previous decision, federal district court may rule contrary to precedent (Mason v. American Emery Wheel Works) |
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Definition
| True/False: When it appears that highest state court would overrule its previous decision, federal district court may rule contrary to precedent |
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Term
| To determine state case law, look to how laws are interpreted by the state's highest court |
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Definition
| How does one determine what a state (case) law is? |
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Term
1) Rule 12(b)(6) motion - failure to state a claim upon which relief can be granted
2) Rule 56: Motion for summary judgment |
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Definition
| Two types of pre-trial motions that test whether this is a need for a trial |
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Term
| You assume facts in complaint are true. Then decide whether P still has nothing. |
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Definition
| What is the test for determining whether lawsuit should be dismissed on a 12(b)(6) motion? |
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Term
| If a plaintiff still cannot recover under a Rule 12(b)(6) motion, the case is dismissed |
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Definition
| What happens in a Rule 12(b)(6) motion if, even if facts stated by P are true, the plaintiff still cannot recover? |
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Term
| In a Rule 12(b)(6) motion, you assume everything P says is true; you do not do this under Rule 56 |
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Definition
| What is the difference between a 12(b)(6) motion and Rule 56 (a motion for summary judgment)? |
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Term
| On a Rule 56 motion, parties can't rest on their pleadings, and must actually come forward with some evidence |
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Definition
| On a (12(b)(6) or Rule 56 motion), parties can't rest on their pleadings, and must actually come forward with some evidence |
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Term
| Rule 56 deals with a motion for summary judgment |
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Definition
| What Rule deals with a motion for summary judgment? |
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Term
| No genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law |
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Definition
| What is the test for when a Rule 56 motion for summary judgment should be granted? |
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Term
| If a Rule 56 motion (for summary judgment) is filed, and there is evidence in conflict, then the motion will be denied, and the case will go to trial |
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Definition
| What happens if a Rule 56 motion (for summary judgment) is filed, and there is evidence in conflict? |
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Term
| Summary judgment exists to prevent waste of time and resources |
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Definition
| Why do we have summary judgment? |
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Term
- We want to judge evidence’s credibility
- Judge or jury will be trier of fact
- If you grant summary judgment, you are taking away right of party to trial by jury |
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Definition
| Why would we not want to allow summary judgment? |
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Term
| A Rule 56 motion is a tighter filter than a Rule 12(b)(6) motion, as it poses the question if a case should even go to trial (think of it is a little preview of the trial) |
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Definition
| What motion is a tighter filter? A Rule 12(b)(6) motion, or a Rule 56 motion? |
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Term
| Where one side puts in evidence and there’s no reason to disbelieve it, and you could have tried to develop some reason in discovery and you didn’t, then summary judgment is granted? (Assuming a motion for summary judgment is made, of course) |
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Definition
| Where one side puts in evidence and there’s no reason to disbelieve it, and you could have tried to develop some reason in discovery and you didn’t, then what happens? |
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Term
| The nature of evidence, evident bias make it a case inappropriate for summary judgment |
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Definition
| The nature of evidence, evident bias make it a case inappropriate for ________? |
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Term
| When a party files a motion for summary judgment (Rule 56), it’s saying to the other side: Bring forward your evidence |
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Definition
| When a party files a motion for summary judgment (Rule 56), it’s saying what to the other side? |
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Term
| On a motion for summary judgment (Rule 56), even if evidence is all on one side, if there’s some reason to doubt the evidence, then the case goes to trial |
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Definition
| On a motion for summary judgment (Rule 56), even if evidence is all on one side, if there’s some reason to doubt the evidence, then what happens? |
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Term
| Circumstantial evidence can defeat a Rule 56 motion (for summary judgment) |
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Definition
| Can circumstantial evidence defeat a Rule 56 motion (for summary judgment), or is direct evidence required? |
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Term
| Motion for summary judgment might be granted (it will be if plaintiff presents no evidence on its own right, as the plaintiff has the burden of proof, and summary judgment must be entered against the party who has the burden of proof if that party presents no evidence). In other words, if the party does not have the burden of proof, it simply needs to point out that there is no evidence on the other side |
|
Definition
| What happens if a defendant files for summary judgment, but the defendant presented no evidence? |
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Term
| The motion for summary judgment will be denied, as the plaintiff has the burden of proof at trial, and summary judgment must be entered against the party who has the burden of proof if that party presents no evidence) |
|
Definition
| What happens if a plaintiff files for summary judgment, but the plaintiff presented no evidence? |
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Term
| Yes; If there’s indisputable evidence, such as indisputable videotape, summary judgment can granted even though indisputable evidence may contradict an affidavit |
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Definition
| If there’s indisputable evidence, such as indisputable videotape, can summary judgment be granted even though indisputable evidence may contradict an affidavit? |
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Term
| Yes; When dealing with a motion for summary judgment, evidence can sometimes be so strong that even contradictory evidence is disregarded? (Scott v. Harris) |
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Definition
| When dealing with a motion for summary judgment, can evidence sometimes be so strong that even contradictory evidence is disregarded? |
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Term
| A judgment as a matter of law is made after trial ha started and both sides have presented evidence |
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Definition
| What kind of motion is made after trial has started and both sides have presented evidence? |
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Term
| Only, *after evidence is presented*, if no reasonable jury could come out for party opposing the motion should the motion for judgment of law be granted |
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Definition
| What is the standard for a judgment as a matter of law? |
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Term
| The standard for summary judgment and judgment as a matter of law are the same; Motion only succeeds if no reasonable jury could come out for the side opposing the motion |
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Definition
| Is the standard of summary judgment and judgment as a matter of law similar, the same, or different? |
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Term
| A motion for judgment as a matter of law |
|
Definition
| What is a Rule 50(a) motion? |
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Term
| Not necessarily; sometimes not all the evidence that is presented at trial was planned to be presented at the summary judgment stage |
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Definition
| Is it always the case that, if a judge determined on a summary judgment that P's proffered evidence is sufficient, the same evidence would still be sufficient in regards to a Rule 50 motion? |
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Term
| A judgment notwithstanding the verdict is a judgment as a matter of law that is made after the verdict |
|
Definition
| What is a judgment notwithstanding the verdict? |
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Term
| Judgment notwithstanding the verdict |
|
Definition
| What is a JNOV also known as? |
|
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Term
| Judgment notwithstanding the verdict (JNOV) |
|
Definition
| What is a Rule 50(b) motion? |
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Term
- Judgment as a matter of law: After evidence is present, before the verdict
- Judgment notwithstanding the verdict (JNOV): After the verdict |
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Definition
| A judgment as a matter of law occurs ____________, and a judgment notwithstanding the verdict (JNOV) occurs _________ |
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Term
| A judgment notwithstanding the verdict (JNOV) should be granted where no reasonable jury could have found for non-moving party |
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Definition
| When should a judgment notwithstanding the verdict (JNOV) be granted? |
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Term
| False; to make a judgment notwithstanding the verdict (JNOV)(Rule 50(b), you must have before made a judgment as a matter of law (Rule 50)(a) |
|
Definition
| True/False: You can make a judgment notwithstanding the verdict (JNOV) even if you didn't make a judgment as a matter of law |
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Term
| No; the basic standard for when judgment as a matter of law be granted involves whether there is no sufficient evidence, not if evidence is being weighed against each other |
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Definition
| Is the basic standard for when judgment as a matter of law be granted involve "weighing" opposing evidence? |
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Term
| When you file a motion for summary judgment, the other side must present evidence to defeat the motion. This helps you see what the other side's case is against you |
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Definition
| What is an advantage that can be gained for making a motion for summary judgment, even if toy think the motion is going to be denied? |
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Term
| If the jury decides “correctly”, judge can be let off the hook – hence the initial rejection |
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Definition
| Suppose a judge denies judgment of matter of law before the verdict, but grants it after the verdict (JNOV): How can this be the case, if the standard for granting the verdict is the same? |
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Term
| The Seventh Amendment requires us to maintain the basic right of jury title, but not necessarily every detail on how it is implemented |
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Definition
| The ________ requires us to maintain the basic right of jury title, but not necessarily every detail on how it is implemented |
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Term
| If a judge grants a motion for judgment as a matter of law, and that gets reversed on appeal, a whole new trial results (which costs more time/money) |
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Definition
| What happens if a judge grants a motion for judgment as a matter of law, and that gets reversed on appeal? |
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Term
| If a judge denies a motion for judgment as a matter of aw before the verdict, and then grants a judgment notwithstanding the verdict (JNOV) afterwards, and that gets reversed on appeal, then the judgement just gets entered instead of granting a new trial |
|
Definition
| What happens if a judge denies a motion for judgment as a matter of aw before the verdict, and then grants a judgment notwithstanding the verdict (JNOV) afterwards, and that gets reversed on appeal? |
|
|
Term
| If the jury decides “correctly”, judge can be let off the hook – hence the initial rejection |
|
Definition
| Suppose a judge denies judgment of matter of law before the verdict, but grants it after the verdict (JNOV): How can this be the case, if the standard for granting the verdict is the same? |
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Term
| A motion for judgment as a matter of law long been regarded as controversial because it takes away the right to jury trial |
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Definition
| Why has a motion for judgment as a matter of law long been regarded as controversial? |
|
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Term
| Technically not; the Seventh Amendment guarantees that the "right of trial by jury shall be preserved". This has traditionally been understood as "whatever right to a jury trial that existed now (in 1791), that right is preserved". This is different from saying the right to a jury trial exists. In other words, the Seventh Amendment did not mean every last tiny detail of jury procedure had to be preserved, but that the *basic right* to the trial by jury had to be preserved |
|
Definition
| Does the Seventh Amendment actually guarantee the right of trial by jury? |
|
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Term
| If you demurred to the evidence, you admitted the truth of all of the opponent's evidence, but were saying that the opponent's evidence was insufficient |
|
Definition
| What was a demurrer to the evidence? |
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Term
| If the judge disagreed with a demurrer to the evidence (meaning that the opponent's evidence was sufficient), then the moving party has just lost the case |
|
Definition
| What would happen if the judge disagreed with a demurrer to the evidence? |
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Term
| If you move for judgment as a matter of law and you lose the motion, then you keep going with the trial, and either side could still win the case (as opposed to demurrer with the evidence, in which, if you lose, you lose the case) |
|
Definition
| As compared to demurrer of the evidence, what happens today if you move for judgment as a matter of law and you lose the motion? |
|
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Term
| In the old days, there was no such thing as a motion for judgment as a matter of law after the verdict. You could move for a new trial but all you got was a new trial; you didn't just win the case |
|
Definition
| What is the historic distinction between motion for judgment notwithstanding the verdict (JNOV) and motion for a new trial after the verdict? |
|
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Term
| No; these motions still preserve Seventh Amendment rights. Seventh Amendment did not mean every last tiny detail of jury procedure had to be preserved, but the *basic idea* of a jury trial has to be preserved |
|
Definition
| Do motions such as motions for summary judgment, motions for judgment as a matter of law/motion for JNOV deny someone their Seventh Amendment rights? |
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Term
| Juries can be demographically diverse, “wisdom of crowds”, framer’s intent (it was the intent of the framer’s of the Constitution to have jury), emotions count too, can be more independent than judges |
|
Definition
| Advantages/good things about juries: |
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Term
| Juries can be easily persuadable, dumb, maybe insufficiently attentive, want to go home, they consider the context, depart from the law (this can also be good sometimes) |
|
Definition
| Disadvantages/bad things about juries: |
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Term
| The question how strictly do you want to adhere to traditional form of the jury is intimately tied up with the perceived value of juries and whether you think they’re good or bad |
|
Definition
| The question how strictly do you want to adhere to traditional form of the jury is intimately tied up with what? |
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Term
| Yes; Courts of Appeals enter judgment notwithstanding the verdict (JNOV). (This is seen in the Neely case) |
|
Definition
| Can Courts of Appeals enter judgment notwithstanding the verdict (JNOV)? |
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Term
| True; You have to have some evidence on each critical factor in your case to get past a motion on JNOV |
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Definition
| True/False: You have to have some evidence on each critical factor in your case to get past a motion on JNOV |
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Term
| No; probabilistic assumptions are not enough. (Example: Just going fast doesn’t necessarily mean you will get into head on collision). See Denman v. Spain |
|
Definition
| When it comes to motions (for summary judgment, JNOV, etc.), are probabilistic assumptions (i.e. x "probably" caused y) enough? |
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Term
| With a motion for a new trial, if verdict is against the clear weight of the evidence, then judge can grant new trial |
|
Definition
| How does a motion for a new trial differ from motion for judgment as a matter of law? |
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Term
A motion for a new trial requires a verdict "against clear weight of evidence". If the judge thinks evidence on the other side was so strong, then he can grant a new trial (even if the jury did have some opposing evidence). lower bar than JNOV
- With a motion JNOV, there’s no legally sufficient basis for the original judgment that the jury entered. If there's enough evidence that a jury could come out either way, you can't enter a JNOV. Higher bar than motion for a new trial |
|
Definition
| How does a motion for a new trial differ from motion for judgment notwithstanding the verdict (JNOV)? |
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Term
| The standard for a judgment as a matter of law is higher than the standard for a motion for a new trial |
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Definition
| Which standard is higher: A motion of a new trial, or a motion for a judgment as a matter of law? |
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Term
| The "against the clear weight of evidence" standard deals with motions for new trial |
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Definition
| The "against the clear weight of evidence" standard deals with motions for new trial, or motions JNOV? |
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Term
| The most common reason for a voluntary dismissal (under Rule 41) is that the case has been settled |
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Definition
| What is the most common reason for a voluntary dismissal (Rule 41)? |
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Term
| Plaintiff determines they made a mistake bringing this lawsuit in a certain forum, and they decide they want to bring it again in another forum |
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Definition
| Besides a case settling, what is another common reason for voluntary dismissal under Rule 41? |
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Term
1) File a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment
2) (After opposing party answers) - A stipulation of dismissal signed by all parties who have appeared
3) By court order (you have to file a motion) – court has to approve it |
|
Definition
| Three methods to getting a voluntary dismissal: |
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Term
| A voluntary dismissal is a dismissal without prejudice (P can re-file if it wants) |
|
Definition
| Is an original voluntary dismissal a dismissal with or without prejudice? |
|
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Term
| If you file a second notice of voluntary dismissal, the case is dismissed with prejudice |
|
Definition
| What happens if you file a second notice of voluntary dismissal? |
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Term
| A voluntary dismissal is automatic up until the the time the defendant files an answer (or files a motion for summary judgment). Once the defendant has made an investment in the case, voluntary dismissal is not automatic |
|
Definition
| Is voluntary dismissal automatic or not automatic? |
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Term
| All parties need to sign off on a stipulation for voluntary dismissal only if the opposing party has already answered, or filed a motion for summary judgment. If the voluntary dismissal happens before an answer/motion for summary judgment, then all parties do not need to sign off on a stipulation for voluntary dismissal |
|
Definition
| Do all parties need to sign off on a stipulation for voluntary dismissal? |
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Term
| If one side files a motion to dismiss, and the other side doesn't answer, but files its own motion to dismiss, then the case can be dismissed (although it's not perfect protection against the first party investing money) |
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Definition
| What happens if one side files a motion to dismiss, and the other side doesn't answer, but files its own motion to dismiss? |
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Term
| The main determination should be whether the D is unfairly prejudiced. If the motion is made before D has invested a lot of time it would normally be granted, even though P would gain some advantage in another forum |
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Definition
| If a P moves for voluntary dismissal and does so by seeking a court order, what is the main consideration in whether determining whether to grant such motion? |
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Term
- Lack of subject-matter jurisdiction
- Lack of personal jurisdiction
- Improper service of process
- Failure to prosecute (Rule 41)
- Lack of due diligence |
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Definition
| Reasons a case could be dismissed involuntarily: |
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Term
| Yes; judges can involuntarily dismiss a case without getting explanation from dismissed party. See Link case |
|
Definition
| Can judges involuntarily dismiss a case without getting explanation from dismissed party |
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Term
- A failure to prosecute occurs if plaintiff don't do anything and enough time passes (then the court will say that you are failing to prosecute your case)
- This is a justification for involuntary dismissal |
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Definition
| What is a failure to prosecute? And what type of dismissal is this a justification for? |
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Term
| No; if a case is involuntarily dismissed, it is seen as judgment on the merits (most courts recognize that this is a very severe penalty) |
|
Definition
| If a case is involuntarily dismissed, can it be brought again? |
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Term
| Financials sanctions - such as attorney's fees (the usual punishment) are often assessed first before a case is involuntarily dismissed |
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Definition
| What are some other alternative (and more common) sanctions that are often done first before an involuntary dismissal? |
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|
Term
| If D fails to respond to a suit, P can seek a default judgment |
|
Definition
| What happens when P initiates a suit, but D does nothing and never responds - what can P do? |
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Term
- An entry if default is the actual notice in the docket that D has defaulted; does not on its own entitle P to anything
- Then, on the basis of the entry of default, P can get a default judgment |
|
Definition
| What is the difference between an entry of default and a default judgment? |
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Term
| Yes; you can get a default judgment if the defendant appeared in court, but then went on to do nothing else |
|
Definition
| Can you get a default judgment if the defendant appeared in court? |
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Term
- No, you cannot get a default judgment if the defendant answered a complaint, even if he failed to appear in court
- Coulas v. Smith |
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Definition
| Can you get a default judgment if the defendant answered a complaint, but failed to appear in court? (And in what case is this important in?) |
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Term
- A default has to be entered
- Claim has to be for a sum certain (meaning you're suing for a definite amount) or an amount that can be made certain by computation (e.g. $1 million + 6% interest) |
|
Definition
| Under Rule 55(b)(1), when can a clerk enter a default judgment? |
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Term
| Under Rule 55(c), most courts will set aside a default judgment if the defendant shows up and shows "good cause" |
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Definition
| Under Rule 55(c), what is an example of when most courts will set aside default judgment? |
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Term
| False; If the D defaults, then P is not automatically entitled to default judgment (court takes a look at the case and asks if the case looks like a "real case" - if P has a strong case and it doesn't look like there's a good defense, then court can enter default judgment). |
|
Definition
| True/False: If the D defaults, then P is automatically entitled to default judgment |
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Term
| You can plead or otherwise defend – but if it gets denied and you never do anything else, then you have appeared but also defaulted |
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Definition
| How could you have a case where D has appeared but also defaulted? |
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Term
| The decision in Coulas v. Smith was a default judgment in name only, because, while the D didn't show up, it was decided on the merits (trial proceeded in his absence) |
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Definition
| Was the decision in Coulas v. Smith an actual default judgment, or a default judgment in name only? |
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Term
| A plaintiff is better of winning a judgment on the merits (as opposed to a default judgment), because a judgment on the merits is much less readily attacked |
|
Definition
| Is a plaintiff better off with winning a default judgment, or a judgment on the merits? |
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Term
| The best way for a party to avoid an involuntary dismissal is to comply with the rules and stick with the schedule |
|
Definition
| What is the best way for a party to avoid an involuntary dismissal? |
|
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Term
| Courts of law awarded (monetary) damages, courts of equity awarded other things (i.e. injunctions, declaratory judgments) |
|
Definition
| Difference between historic courts of law and courts of equity |
|
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Term
| The FRCP helped merge courts of law and equity. Today, all federal courts and nearly all state courts have seen the merger of courts of law and equity |
|
Definition
|
|
Term
| Yes; you are entitled to a trial by jury if all you are suing for is money damages. (This is the classic common law negligence and classic common law damages) |
|
Definition
| Are you entitled to a trial by jury if all you are suing for is money damages? |
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Term
| No; you are not necessarily entitled to a trial by jury if all you are suing for is specific performance. (This is an equitable action because it historically has been an equitable action) |
|
Definition
| Are you entitled to a trial by jury if all you are suing for is specific performance? |
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Term
| The basic rule is: If your action is one that historically would have been an action at law, you are entitled to trial by jury. (The main way you tell the difference is by the relief sought) |
|
Definition
| Basic rule: If your action is one that historically would have been an action at law, you get what kind of trial? |
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Term
| A declaratory judgment (a statement from a court that a party is/is not doing something) is akin to a "preemptive strike" |
|
Definition
| What kind of judgment is akin to a "preemptive strike"? |
|
|
Term
| A declaratory judgment is a statement from a court that a party is/is not doing something |
|
Definition
| What is a declaratory judgment? |
|
|
Term
- No; a prior determination on equitable remedy does not change the right to preserve a jury trial
- Beacon Theatres, Inc. v. Westover |
|
Definition
| Can a prior determination on equitable remedy change the right to preserve a jury trial? And what case is this referenced in? |
|
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Term
- They key question asked before we read Beacon Theatres was "Who was Westover?"
- Answer: Westover was the judge |
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Definition
| What was the key question asked before we read the Beacon Theatres case? And what is the answer to it? |
|
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Term
| The main concern of the deciding court in Beacon Theatres v. Westover was that they didn’t want right to jury trial on a legal claim to be lost just because there was also equitable claim in the case |
|
Definition
| What was the main concern of the deciding court in Beacon Theatres v. Westover? |
|
|
Term
- If a legal claim and equitable claim are brought together, you must try the legal claims first (court can't do it the other way around). Where a single case involves both legal and equitable issues, and issue rests on same facts, the issues must be resolved in an order in which right to jury trial won’t be lost.
- Beacon Theatres v. Westover |
|
Definition
| What happens when a legal claim and equitable claim are brought together? And what case is this important in? |
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Term
- The clean-up doctrine existed historically when there were legal and equitable issues together, the court would ask: what is the essence of the case? If the essence of the case was equitable, the legal claims would be “swept up” into equitable claims
- No; the Supreme Court abolished the "Clean-up" doctrine. You no longer look at the whole case together - you look at the case issue by issue (as done in Beacon Theatres v. Westover). If the issue in a case is a legal issue, then that issue should be tried by jury |
|
Definition
| What is the "clean-up" doctrine, and is it still in existence? |
|
|
Term
- If a plaintiff brings a claim using a device that is typically used for equitable actions (but seeks damages), then a right to a jury trial still exists. What matters is not the special procedure that attaches to shareholder derivative suits, it’s the underlying claim for damages. The fact that it’s being brought using this device for equity is irrelevant.
- Ross v. Bernhard (note case) |
|
Definition
| What happens if a plaintiff brings a claim using a device that is typically used for equitable actions, but seeks damages? And what is the that references this? |
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Term
| Because historically, shareholder derivative suits were brought in equity even though the legal remedy sought was money damages. The Supreme Court said that this does not matter; where a claim is essentially legal, there can be a jury trial. (Although history is one important factor, it is not a purely historical test) |
|
Definition
| How does the Supreme Court depart from the purely historical test of legal vs. equitable in Ross v. Bernhard? |
|
|
Term
| There is no known "complexity exception" when deciding whether to have a jury or bench trial, although there is a dispute in the circuits as to whether there is a complexity exception (some people have suggested as a function reason for why we shouldn't have a jury trial). The Supreme Court has never accepted a complexity exception |
|
Definition
| Is there a "complexity exception" when deciding whether to have a jury or bench trial? |
|
|
Term
| Yes; Congress can require a jury trial, even if not required by the Seventh Amendment |
|
Definition
| Can Congress require a jury trial, even if not required by the Seventh Amendment? |
|
|
Term
| No; Congress cannot deny a right to a jury trial if required by the Seventh Amendment (that would be unconstitutional) |
|
Definition
| Can Congress deny a right to a jury trial, even if required by the Seventh Amendment? |
|
|
Term
| When dealing with the Seventh Amendment, "common law" means common law as opposed to equity (not common law as opposed to statutory law, like we commonly think of it) |
|
Definition
| What does "common law" mean, when dealing with the Seventh Amendment? |
|
|
Term
| No; if a party seeks damages and an equitable remedy, and is awarded those damages, it is not automatic that the equitable remedy will also be awarded. Equitable remedies are generally discretionary. Although it is quite common for the equitable remedy to follow the damages, this does not always happen |
|
Definition
| If a party seeks damages and an equitable remedy, and is awarded those damages, is it automatic that the equitable remedy will also be awarded? |
|
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Term
| If the harm to a defendant from granting an injunction to a plaintiff greatly outweighs the benefit to the plaintiff, then the judge very well might not grant the injunction |
|
Definition
| What happens if the harm to a defendant from granting an injunction to a plaintiff greatly outweighs the benefit to the plaintiff? |
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Term
| In Atlas Roofing, the Supreme Court held that a jury trial isn't necessary in a case involving "public rights" (A case involves public rights when the government is a party, and it's acting in some manner of public concern) |
|
Definition
| In Atlas Roofing, what did the Supreme Court say about jury trials in the case of "public rights?" |
|
|
Term
| No; when a government agency resolves a dispute, it does so without a jury |
|
Definition
| When a government agency resolves a dispute, does it do so with a jury? |
|
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Term
| A case involves public rights when the government is a party, and it's acting in some manner of public concern. If this happens, a trial might be ordered that is held by an administrative agency |
|
Definition
| When does a case involve "public rights" (Atlas Roofing)? |
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Term
| Congress has created a whole array of administrative agencies that do some work that you might think would be done by Article III judicial branch. (They resolve certain disputes) |
|
Definition
| Congress has created a whole array of __________ that do some work that you might think would be done by Article III judicial branch. (They resolve certain disputes) |
|
|
Term
| No; in that example, Government is not a party to the dispute. When we have two private parties, Congress can't take private disputes and pluck them out of court system |
|
Definition
| Can Congress get around Seventh Amendment by creating an agency staffed by administrative judges that would hear cases between private parties? |
|
|
Term
| No; It’s a historical test, the right to jury trial was always a right only in court. That right does not itself doesn’t protect you against not being in court. So if you are legitimately put in some other setting, jury right does not apply. |
|
Definition
| • Once it is determined that Congress can take a case out of court and give it to administrative tribunal, is that tribunal required to use a jury? |
|
|
Term
| Yes; there is a jury trial right in bankruptcy court |
|
Definition
| Is there a jury trial right in bankruptcy court? |
|
|
Term
| At some point before this case, court had expanded definition of “public right” to mean intertwined. If government is involved, the case seems to be somewhat special in that Congress could take those cases out of the court altogether and put them in some administrative tribunal which would not have a jury. If Congress does put it in a court, then Seventh Amendment would apply |
|
Definition
| What is the expanded definition of "public right", as seen in the Granfinanciera note csse? |
|
|
Term
- Yes; A plaintiff in an action against a union for breach of duty of fair representation is entitled to a jury.
- Chauffeurs, Teamsters, and Helpers Local 391 v. Terry |
|
Definition
| Is a plaintiff in an action against a union for breach of duty of fair representation entitled to a jury? And in what case do we see this in? |
|
|
Term
| Not necessarily; Generally, monetary remedies are almost always legal remedies, but there is the somewhat ill-defined possibility that monetary damages are restitutionary |
|
Definition
| Are monetary remedies always legal remedies? |
|
|
Term
| Yes; the Supreme Court recently held that the Seventh Amendment does apply to states. Historically, it did not, and most states do have their own state constitutional provisions which are rather similar to the Seventh Amendment |
|
Definition
| Does the Seventh Amendment apply to states? |
|
|
Term
| No; states tend to follow the "clean-up" doctrine (they determine which claim predominates and try the case accordingly - "we will be guided by the overall character of the case") |
|
Definition
| Have states abolished the "clean-up" doctrine? |
|
|
Term
| Traditionally, the judge decides questions of law, and the jury decides questions of fact |
|
Definition
| In a jury trial, what is the traditional role of the jury? And what is the traditional role of the judge? |
|
|
Term
| No; it is not always obvious whether something is a question of law or a question of fact. Some questions are mixtures. The jury doesn't always come back with purely factual verdict |
|
Definition
| Is it always obviously whether something is a question of law or a question of fact? |
|
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Term
| The judge does, as the age of majority in that particular jurisdiction is a question of law |
|
Definition
| Hypo: P is an auto dealer who sold a car to D. D signed a contract to buy the car. But then D changed his mind and decided not to buy the car. P says you have to buy the car. D says “I was a minor when I signed that contract” so I can void the contract. So P sued D. There’s a dispute about when the contract was signed – whether June or January. This is significant because P turned 19 in March. Other dispute is what is age of majority in that particular jurisdiction. Who decides what the age of majority is? |
|
|
Term
| The jury does, as the date the contract was signed is a question of fact |
|
Definition
| Hypo: P is an auto dealer who sold a car to D. D signed a contract to buy the car. But then D changed his mind and decided not to buy the car. P says you have to buy the car. D says “I was a minor when I signed that contract” so I can void the contract. So P sued D. There’s a dispute about when the contract was signed – whether June or January. This is significant because P turned 19 in March. Other dispute is what is age of majority in that particular jurisdiction. Who decides the date the contract was signed? |
|
|
Term
| No; state courts generally see a reluctance to try "mixed" trials where P has both legal and equitable claims (hence the state use of the "clean-up" doctrine, in which states say "We'll guide by the overall character of the case") |
|
Definition
| Do state courts tend to have "mixed" trials between legal and equitable claims? |
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Term
| True; Sometimes, facts in a case are so clear that the question can be taken from the jury |
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Definition
| True/False: Sometimes, facts in a case are so clear that the question can be taken from the jury |
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Term
- The interpretation and construction of the scope of a patent claim is a matter of law
- Thus, it should be determined by a judge, rather than a jury (reason is because it’s too complicated and technical for the jury and because we want more uniformity on patents than on contracts)
- Markman v. Westview Instruments, Inc. |
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Definition
| Is the interpretation and construction of the scope of a patent claim a matter of law or fact? Should it be determined by a judge or jury? And what case is this from? |
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Term
- If a contract is ambiguous, then the question of meaning of a contract becomes a question for the jury. (Note the difference from what you would think - as juries are seen to have some experience with contracts, and they are less technical)
- Dobson v. Masonite Corp. |
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Definition
| What happens when a contract is ambiguous? Who decides, a jury or a judge? And what note case is this from? |
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Term
| The judge, as they're decided before the trial (plus, the Seventh Amendment doesn't attach, and the jury is not empaneled yet) |
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Definition
| If a defendant moves before a trial to dismiss for lack of personal jurisdiction, who determines this issue? (i.e. D's contacts?) |
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Term
- A party must ask for a jury trial, and waives the right if they fail to demand it
- Rule 38 |
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Definition
| Is a trial by jury automatic? Or does a party have to ask for a jury trial? And what rule is this delineated in? |
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Term
| You demand a jury trial within 14 days of the last pleading |
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Definition
| During what time frame do you demand a jury trial? |
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Term
| In a typical case in which the pleadings consist of the complaint and the answer, you have to demand a jury trial within 14 days of the answer |
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Definition
| In a typical case in which the pleadings consist of the complaint and the answer, when do you have to demand a jury trial? |
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Term
- Your right to jury trial is waived (note that you can still request a jury trial by motion if you miss the 14-day time frame)
- Rule 38(d) |
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Definition
| What happens if you fail to demand a right to a jury trial? And what rule is this covered in? |
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Term
| Yes; if you fail to request a jury trial within the 14-day time period, you can request a jury trial via motion. (However, some judges are quite hostile to that motion, so you are obviously better off complying with the rule) |
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Definition
| Do you have any other recourse if you fail to request a jury within the 14-day time period, and your right to a jury trial is waived? |
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Term
| We have the rule that a right to a jury trial must be requested because jury trials can be expensive and bothersome |
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Definition
| Why do we have the rule that states that a right to a jury trial must be requested? |
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Term
| According to Rule 48, juries in federal cases must start with at least six people, and at most 12 members |
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Definition
| According to Rule 48, how many people are on a jury (in federal cases)? |
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Term
| For example: The juror dies, gets sick, has family emergency, etc. |
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Definition
| How can the number on a jury decline from the number of people from when it started? |
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Term
| It was universally assumed because 12 members of a jury was the common law tradition |
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Definition
| Until 1970, it was universally assumed that federal juries had to consist of twelve people. Where did people get the idea that a jury of twelve was constitutionally required? |
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Term
| Yes; the Sixth Amendment right to trial by jury for criminal cases also applies to the states (note case: Duncan v. Louisiana) |
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Definition
| Does the Sixth Amendment right to trial by jury for criminal cases also applies to the states? |
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Term
| No; states all do things slightly differently. For example, some states use six-person juries |
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Definition
| Do juries have a uniform number of members across different states? |
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Term
| The # requirement for juries in federal criminal procedure is 12 members |
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Definition
| This is beyond the scope of what we are learning for this course, but what is the # requirement for juries in federal criminal procedure? |
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Term
Jury-selection is a two-stage process:
- Venire: The list of potential jurors is compiled and assembled
- Voir dire: These tentative jurors are questioned by the judge and/or by the attorneys to determine whether each of them can decide the case fairly and appropriately |
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Definition
| How many stages is the jury-selection process? And what are those stages |
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Term
Voir dire in state system: Done by the attorneys
Voir dire in federal system: Done by the judges |
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Definition
| Who does the voir dire (process in which tenative jurors are questioned by the judge and/or by the attorneys) in the state system? Who does the voir dire in the federal system? |
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Term
1) Challenge for cause (for impartiality)
2) Peremptory challenge (a challenge for which, generally, no reason needs to be stated) |
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Definition
| What are two ways for a jurors for be challenged? |
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Term
| No; traditionally, each side has a fixed number of peremptory challenges |
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Definition
| Does each side have an unlimited number of peremptory challenges? |
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Term
| A venire is supposed to be compiled of a cross-section of the community |
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Definition
| A venire is supposed to be compiled of a ________ of the community |
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Term
| No; there are no limits for challenges for cause re: voir dire (unlike peremptory challenges) |
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Definition
| Is there a limit for a challenge for cause re: voir dire (like there is for a peremptory challenge?) |
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Term
- Yes. Disqualification for bias or prejudice extends not only to the parties personally, but also to the subject matter of the litigation.
- Flowers v. Flowers (potential juror states anti-alcohol feelings, and is disqualified) |
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Definition
| Can disqualification for bias or prejudice extends not only to the parties personally, but also to the subject matter of the litigation? And what case is this represented in? |
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Term
| No; race may not be used as a basis for peremptory challenges in a civil suit (Edmonson v. Leesville Concrete Company, Inc.) |
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Definition
| Can race be used a basis for a peremptory challenge in a civil suit? And what case does this refer to? |
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Term
| Peremptory challenges helps parties feel they got a better deal in court |
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Definition
| One reason why we have peremptory challenges at all? |
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Term
| The burden of production is to produce enough evidence so that you meet the standard so that a jury could find in your favor |
|
Definition
| What is the burden of production? |
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Term
| The burden of persuasion is usually on the plaintiff |
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Definition
| What side is the burden of persuasion usually on? |
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Term
| The defense has the burden of production/persuasion for affirmative defenses (as D would know better than P the circumstances giving rise to the affirmative defense) |
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Definition
| Which side carries the burden of production/persuasion for affirmative defenses? |
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Term
| Jury instructions say the applicable law as well as the role of the jury |
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Definition
| What is contained in jury instructions? |
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Term
| Party will submit the instructions it would like to have given. The judge in then supposed to give correct instructions (court must tell the parties what it decided to give as instructions) |
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Definition
| How do jury instructions get formulated? |
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Term
| Objections to jury instructions must take place at the "charge conference" (this occurs outside the presence of the jury) |
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Definition
| When must a party object to jury instructions? |
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Term
| If you don't object to jury instructions at the charge conference, then you've waived the right to object later, except for objections of plain error (if an error would lead to a miscarriage of justice, then it's a plain error) |
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Definition
| What happens if you don't object to jury instructions at the charge conference, but want to object later? |
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Term
- You have to state what you object to
- You must state your grounds for objection |
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Definition
| Two components of an objection to jury instructions |
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Term
| If you don't like a jury instruction, you must object to that instruction (There are a lot of court of appeals cases where opinion says: counsel waived objection to jury instruction. Lawyer actually must say "I object" at charge conference...inferred rejections are not enough) |
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Definition
| If you don't like a jury instruction, what must you do? |
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Term
- If you asked for an instruction on an important issue and you get a little bit wrong, that’s not grounds for the court to say nothing about that issue. As long as you call district court's attention to important point even if you got it wrong, district court has obligation to instruct correctly
- Kennedy v. Southern California Edison Co. |
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Definition
| What happens if someone requests an instruction and the court doesn’t give it, and then court of appeals finds the instruction is wrong? And in what case is this referred to in? |
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Term
| Judges, lawyers, committees, and statutes all can make up the composition of jury instructions |
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Definition
| Who writes the actual jury instructions? |
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Term
| Yes; when a court of appeals approves a jury instruction, there is a real strong impetus to use that jury instruction again (a re-trial is very expensive) |
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Definition
| When a court of appeals approves a jury instruction, is it generally used again in future trials? |
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Term
| In some ways, jury instructions are really written for the court of appeals rather than for the jury, as you want to instruct the jury, but you always want to have something that will satisfy the court of appeals |
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Definition
| In some ways, jury instructions are really written for the _________ rather than for the _________ |
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Term
| Yes; a judge may allow a jury to ask questions during a trial (see SEC v. Koenig) |
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Definition
| Can a judge allow a jury to ask questions during a trial? |
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Term
- Bad idea, because jurors could ask questions that would be improper (i.e. about hearsay or something)
- Could be overcome by judge filtering questions; jury submits written questions and then judge modifies them as necessary |
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Definition
| Why could juror question be considered a bad idea? And how could that be overcome? |
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Term
- General verdict
- Special verdict
- General verdict with interrogatories |
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Definition
| Three different types of verdicts: |
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Term
| A general verdict involves a jury returning a decision, and awarding damages if a plaintiff wins |
|
Definition
| What is a general verdict? |
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Term
| A special verdict involves a jury answering factual questions relating to the case, with the judge then handing down the verdict |
|
Definition
| What is a special verdict? |
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Term
| A general verdict with interrogatories is a combination of a general verdict and special verdict. This requires a jury to give a general verdict, but also requires it to provide answers to a series of questions that are usually less extensive than questions normally used with a special verdict |
|
Definition
| What is a general verdict with interrogatories? |
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Term
| The court (district judge) decides what form of verdict that will be used. Counsel can argue which form should be used, but it's up to the judge |
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Definition
| Who decides the form of what kind of verdicts to use? |
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Term
| If the case is very complex, a judge might want jurors to answer questions. In addition, questions can be used to protect a party from unfair prejudice. Finally, the more questions that can be nailed down, the less the chance for a retrial |
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Definition
| What factors could influence a judge's decision as to which type of verdict should be handed down? |
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Term
| If a general verdict with interrogatories is returned, and the interrogatories were inconsistent with the verdict itself, then the judge can order a new trial, and direct the jury to further consider its answers and verdict (and then rule accordingly to the answers in the interrogatories). See Rule 49(b)(3). |
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Definition
| What happens if a general verdict with interrogatories is returned, and the interrogatories were inconsistent with the verdict itself? |
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Term
| The fundamental principle of present value is that money now is worth more than money later (if you get money now, you can accrue interest) |
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Definition
| What is the fundamental principle of present value? (from Nollenberger) |
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Term
| A special verdict or general verdict with interrogatories might help prevent the need to a costly retrial |
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Definition
| Which type of verdict might help revent a need to a costly retrial - a general verdict, or a special verdict/general verdict w/interrogatories? |
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Term
| No; a trial judge has to write out his findings, and the court must find the facts specially - making this the equivalent of a special verdict |
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Definition
| Can a trial judge give a judicial equivalent of a general verdict? |
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Term
- No; a trial court judge should pare his own findings of fact and conclusions at law
- Roberts v. Ross |
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Definition
| Can a counsel for one of the parties prepare findings of fact and conclusions of law? What case is this referenced in? |
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Term
| No; a court does not automatically enter judgment on the jury's verdict |
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Definition
| Does a court automatically enter judgment on the jury's verdict? |
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Term
- A party can file a judgement notwithstanding the verdict (JNOV) if it feels that no reasonable jury could have found for the party the way it did
- If there’s a general verdict with interrogatories, then party who got general verdict might not get judgment if it’s inconsistent with the special interrogatories
- A verdict is "against the clear weight of the evidence", and a motion for a new trial might be granted (Rule 59) |
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Definition
| Why are some reasons why a court might not automatically enter judgment on the jury's verdict? |
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Term
| Jury verdicts can only be set aside of the substantial rights of the parties are affected |
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Definition
| Jury verdicts can only be set aside if the _______ of the parties are affected |
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Term
| After the verdict was returned, but the jury was discharged, the jurors can be polled 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. |
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Definition
| According to Rule 48(c), after a verdict is returned but before the jury is discharged, what can the court must on a party's request (or on its own)? |
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Term
If a jury is polled, and there is a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to, then the court may:
- Direct the jury to deliberate further; or
- Order a new trial |
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Definition
| What are two things that can happen if a jury is polled, and there is a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to? |
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Term
- District Court erred by ordering a new trial after jury re-deliberated and changed % of negligence (but not $ amount of damages)
- While a judge has considerable authority to order a new trial on the basis of errors, there must actually has to be an error
- A jury re-assessing its assignment of liability due to re-deliberation, or clarifying its thinking, is within its duty (within duty to reconcile the verdicts on any reasonable theory consistent with the evidence) |
|
Definition
| Lessons to take out of Duk v. MGM Grand (heart attack at casino): |
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Term
- A juror’s false answer in voir dire is notable only if it is deliberate and shows bias (in other words, it has to be enough that it would demonstrate bias or that it would be a proper challenge for cause)
- McDonough Power Equipment, Inc. v. Greenwood note case |
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Definition
| A juror’s false answer in voir dire is notable only if? And in what (note) case did we see this in? |
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Term
- A quotient verdict is an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be. Then the amounts are totalled and divided by the number of jurors to reach a figure for the award. A quotient verdict is illegal and improper since it is based on guesses and not a rational discussion of the facts. A jury is supposed to deliberate until unanimous verdict. A quotient verdict is not unanimous, as everyone had originally said a different amount
- Hukle v. Kimble |
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Definition
| What is a quotient verdict, and in what (note) case did we see this in? |
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Term
| Yes; if the jury takes a quotient as a starting point and says: now that we have a starting point we will deliberate, and then after deliberation they come to a number and that number happens to be the quotient, then that is permitted |
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Definition
| Suppose the jury uses quotient verdict as starting point and then after further deliberation they agree that’s the okay amount – can they do that? |
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Term
| Federal Rule of Evidence 606(b) says that you can’t do anything about it, and the verdict would not be set aside on this basis in the federal system (this is because we want to protect and promote robust deliberation and we feel like if we’re going to inquire into what was said in deliberations people won’t be willing to speak up) |
|
Definition
| Suppose you try a case in federal court and you represent D. Judgment is entered for P. Then a juror calls you and says “we took a quotient verdict.” What can you do? |
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Term
| Yes; if a juror admits after a verdict that he took a bribe, that would constitute an improper outside influence, and that verdict could then be overturned (this would be a FRE 606 exception) |
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Definition
| Suppose after the case is over, a juror admits that he took a bribe. Could the juror testify about that and could the verdict be overturned on that basis? |
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Term
| No; that reason will not be used to undermine a verdict (you can't change your mind afterwards and have that effect the verdict, as the jury vote is a vote of a deliberative body, and the only vote that counts is the one that is taken at this time) |
|
Definition
| Suppose a few days after the verdict a juror shows up in court and says: I don’t agree with the verdict. I did at the time, but I was actually feeling pressured and wanted to go home. What about that? |
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Term
| If a juror admitted to being prejudiced by a newspaper article, this would constitute extraneous, prejudicial information, and the verdict could be overturned on that basis (this would be a FRE 606 exception) |
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Definition
| Support after a verdict is reach, a juror admitted to being prejudiced by a newspaper article? |
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Term
- If it’s against the clear weight of the evidence
- It’s not so terrible you would enter verdict for the other side, but judge can order new trial if judge thinks it’s against the clear weight of the evidence
- If it’s close, judge is just supposed to leave it alone
- That’s just an application of what we previously saw of overturning a verdict when it’s against the clear weight of the evidence |
|
Definition
| What is the test that the court should apply to say whether the verdict is too large or too small? |
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Term
| An additur is an order denying the plaintiff’s application for a new trial on condition that the defendant consent to a specified increase in the jury’s award is called an additur |
|
Definition
|
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Term
| A remittitur is an order denying the defendant’s application for a new trial on the condition that the plaintiff consent to a specified reduction in the jury’s award |
|
Definition
|
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Term
- Additurs are still outlawed in some states and in federal courts
- Remittiturs have been recognized almost everywhere |
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Definition
| An (additur/remittitur) are still outlawed in some states and in federal courts, while an (additur/remittitur) have been recognized almost everywhere |
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Term
| Additurs and remittiturs have to deal with denying one party's motion for a new trial as long as the opposing party consents to a reduction or increase in the amount of damages awarded |
|
Definition
| What concept do additurs and remittiturs have to do with? |
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Term
| Because in 1791 (Seventh Amendment created), remittitur existed, but there was no recorded case of additur |
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Definition
| Why is additur controversial, why remittutur is not? |
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Term
| The defendant would generally complain about a remittutur, as it only has an effect if the plaintiff agrees to it. (To mollify defendant, one could argue that the judge could have just let the original jury verdict stand) |
|
Definition
| Which side generally complains about a remittitur, and why? |
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Term
| The plaintiff would generally complain about an additur. (To mollify plaintiff, one could argue the P should be happy, as the judge raised the award) |
|
Definition
| Which side generally complains about an additur, and why? |
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Term
| Additur is not allowed in the federal system, as it would violate the Seventh Amendment |
|
Definition
| Is additur allowed in the federal system? Why or why not? |
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Term
| Additur and remittutur can promote efficiency |
|
Definition
| What is one advantage to additur and remittutur? |
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Term
- Judge can set remittitur to anything in the reasonable range at his discretion
- Powers v. Allstate |
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Definition
| When the court finds that jury’s verdict is grossly excessive and judge wants to order remittitur, how is it supposed to come up with appropriate number? And what case is this from? |
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Term
| Federal Rule of Evidence 606(b) says that we can't inquire into jury deliberations (with some exceptions) |
|
Definition
| What Federal Rule (of Evidence) says that we can't inquire into jury deliberations (with some exceptions)? |
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Term
| One example of a partial new trial is a new trial in which the only issue is the issue of damages (however, the court did not grant a partial new trial in Doutre v. Niec, based on that hypothetical) |
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Definition
| What is an example of a partial new trial? |
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Term
| In Doutre v. Niec, the court held that the question of liability and damages are so closely intertwined that they may not usually be separated, so that if a new trial is required on the issue of liability, the issue of damages must also be retried |
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Definition
| In Doutre v. Nic, did the court find that a new trial should be issued on the question of damages, or that the question of liability and damages are so closely intertwined that they may not be separated? |
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Term
- If there’s a case in which punitive damages are at issue, jury would need to learn about just how egregious D’s behavior was in order to assess issue of punitive damages
- In addition, there are some cases where we feel like jury thought liability issue was kind of close – and the compromise was we’ll rule for P but cut down on the damages |
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Definition
| Why did the court hold in Doutre v. Niec that the issue of liability and damages are closely intertwined? |
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Term
| Partial new trials are generally disfavored |
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Definition
| Are partial new trials generally favored or disfavored? |
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Term
- No; in order to appeal a court's decision, you must have filed both a Rule 50(a) motion (judgment as a matter of law) and a Rule 50(b) motion (JNOV)/Rule 59 motion (Motion for a New Trial)
- Unitherm Food Systems, Inc v. Swift-Eckrich Inc. |
|
Definition
| Can you appeal a court's decision if you did not file a post-verdict motion (i.e. motion JNOV, motion for a new trial)? And in what (note) case is this found? |
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Term
| A party has 28 days after the entry of judgment to file for a motion JNOV (Rule 50b) or a motion for a new trial (Rule 59) |
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Definition
| How long after the entry of judgment does a party have to file a motion JNOV, or a motion for a new trial? |
|
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Term
| No; under Rule 6, a time extension cannot be granted for a Rule 59 motion (motion for a new trial) |
|
Definition
| Can a time extension be granted for a Rule 59 motion? |
|
|
Term
| Yes; under Rule 60, a court can set aside a judgment |
|
Definition
| Can a court set aside a judgment on its own? |
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Term
| Yes; a judgement can be set aside for clerical mistakes (Rule 60a). Note that this is not for mistakes of law (e.g. jury applying comparative negligence scheme in a contributory negligence regime) |
|
Definition
| Can a judgment be set aside for clerical mistakes? |
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|
Term
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) Fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) The judgment is void;
(5) The judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) Any other reason that justifies relief |
|
Definition
| What are some grounds for a judgment to be set aside, under Rule 60(b)? |
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Term
| A party has a reasonable amount of time (no more than a year for the first three grounds for relief) to file a Rule 60(b) motion (to set aside a judgment) |
|
Definition
| How long does a party have to file a Rule 60(b) motion (to set aside a judgment)? |
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Term
- Yes; if a P fails to respond to a Rule 12(b) motion, because he didn't know he had to (and he was representing himself), that is a circumstance in which Rule 60(b)(1) might apply.
- Briones v. Riviera Hotel & Casino (note case) |
|
Definition
| Suppose a P fails to respond to a Rule 12(b) motion, because he didn't know he had to (and he was representing himself). Could he file a Rule 60(b) motion? And in what case is this referenced in? |
|
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Term
| Yes; if a trial date got advanced, but D wasn't notified, and the case went forward anyways, D could get relief under Rule 60(b)(1) |
|
Definition
| Suppose a trial date got advanced, but D wasn't notified, and the case goes forward anyways. Could D get relief under Rule 60? |
|
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Term
| No; if counsel makes a mistake during trial, such as forgetting to ask a question of a witness, that is not grounds for relief under Rule 60 |
|
Definition
| Suppose if counsel makes a mistake during trial, such as forgetting to ask a question of a witness. Could you get relief under Rule 60? |
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Term
| True; Relief under Rule 60 is rarely granted on this ground in a case where you were there and litigated the merits (it's more reserved for if you missed a trial, or didn't respond to a motion because you didn't know you had to, such as in Briones) |
|
Definition
| True/False: Relief under Rule 60 is rarely granted on this ground in a case where you were there and litigated the merits |
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Term
| No; ignorance of a deadline is not an excuse under Rule 60 (exception: cases such as Briones) |
|
Definition
| Is ignorance of a deadline an excuse under Rule 60? |
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Term
Newly discovered evidence is a basis under Rule 60(b)(2) to seek relief from the judgment. But there are some limitations:
- It has to be evidence that existed at time of trial but you couldn’t have known about it at the time of trial
- It must have likely changed the result of the trial |
|
Definition
| What if after the evidence was entered you discover some dramatic new evidence that totally changes the case? |
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Term
- The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice
- But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave |
|
Definition
| When can a clerical error be corrected, under Rule 60(a)? |
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Term
| If there was no way for D to discover this video, that would probably fit the various restrictions of Rule 60 i.e. Rule 60(b)(3) - fraud |
|
Definition
| Suppose P in a negligence case claims that because of D’s negligence he (P) can’t walk. Then after judgment is entered, P posts video of him dancing. Would that be a basis for upsetting the judgment? |
|
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Term
| Yes; according to Rule 60(b)(3), judgment can be set aside on the basis of fraud |
|
Definition
| Can judgments be set aside on the basis of fraud? |
|
|
Term
- No; it had to be evidence that existed at the time of the trial (this is done to preserve the finalities of judgment)
- Patrick v. Sedwick, p.1154 |
|
Definition
| Suppose P suggested he was permanently injured but after case was over, it turned out there was a new treatment that had been discovered to help P. Can that be a basis for relief? And in what case is this referenced? |
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Term
| Nothing; there’s often all kinds of uncertainties in calculating damages that we wish the jury could resolve at the time of the trial |
|
Definition
| Suppose P is injured and can no longer work, so jury wants to award damages for P's lost wages. Then jury estimates life span of x years. Then it turns out that P lives another x + 30 years. What do we do to that judgment? |
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|
Term
| True; “Permanently injured” means we mean jury thinks at the time that P is permanently injured. Jury makes best judgment at the time. We don’t go back later and change things. |
|
Definition
| True/False: When deciding judgments, “permanently injured” we mean jury thinks at the time that P is permanently injured. |
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Term
| If a case is influenced by a party's perjury, then it was the duty of the district court to grant the motion. If you can prove that witness committed perjury, that’s a basis for overturning the judgment. |
|
Definition
| What if a case is influenced by a party's perjury? Is this grounds for a Rule 60(b)(3) fraud motion? |
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Term
| The standard for proving fraud, based on Rule 60(b)(3) is clear and convincing evidence |
|
Definition
| What is the standard for proving fraud, based on Rule 60(b)(3)? |
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Term
| "Fraud on the court" deals with fraud committed by an officer of the court (including attorneys). Classic example of this is bribing a judge. Does not include a witness committing fraud without counsel of attorney. "Fraud on the court" is dealt with in Rule 60(d)(3) - Judgment can be set aside on any time |
|
Definition
| What is the difference between fraud and "fraud on the court" |
|
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Term
| No; a witness committing fraud (without counsel of attorney) is not considered "fraud on the court", resulting in a Rule 60(d)(3) motion |
|
Definition
| Is a witness committing fraud (without counsel of attorney) considered "fraud on the court", resulting in a Rule 60(d)(3) motion? |
|
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Term
| - You can’t give a party anything on appeal that wasn’t asked for at the trial level. Unless it’s been raised at trial level, it cannot be given on appeal (exception: Plain error) |
|
Definition
| Bottom line of Unitherm case: |
|
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Term
| No; there is no time limits for setting aside void judgments (Rule 60(b)(4)) |
|
Definition
| Is there a time limit on setting aside void judgments? (Rule 60(b)(4)) |
|
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Term
| A judgment is void if it's made by a court that lacks jurisdiction |
|
Definition
| What makes a judgment void? (Rule 60(b)(4)) |
|
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Term
- The basic thinking is no
- But Rule 60(b)(5) would apply to situations where P sues D and wins. Then D is appealing. Then while that appeal is pending, D sues P over the same facts and loses b/c of res judicata. Then on appeal the first claim gets reversed. Then the second claim (res judicata) could get overturned |
|
Definition
| Rule 60(b)(5): What if you lose a case and court says: you have to lose because of this decision (precedent) and then later that decision gets overturned - should we go back and vacate all other judgments based on this rule? |
|
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Term
- An independent action is a new action to challenge the judgment of a first action. Normally this barred because of res judicata, but five elements (which often overlap with Rule 60(b)(1-3)) can allow independent actions in unusual or exception circumstances
- Marcelli v. Walker |
|
Definition
| What is an independent action, and how does it deal with res judicata? And in what case did we see this in> |
|
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Term
1) A judgment that should not in equity and good conscience to be enforced
2) A good defense to the alleged cause of action on which the judgment was based
3) Fraud, accident, or mistake
4) The absence of fault or negligence on the part of the party seeking refuge in the rule
5) The absence of remedy at law |
|
Definition
| What are the five elements for an independent cause of action? |
|
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Term
| "What trial court rulings are appealable by a court of appeals?" is the question of "When?" |
|
Definition
| "What trial court rulings are appealable by a court of appeals?" is the question of _______?" |
|
|
Term
| "What trial court rulings are reviewable by a court of appeals" is the question of "What?" |
|
Definition
| "What trial court rulings are reviewable by a court of appeals" is the question of ____________?" |
|
|
Term
| "What is the standard of review" is the question of "How?" |
|
Definition
| "What is the standard of review" is the question of _______?" |
|
|
Term
| No; courts of appeal only have jurisdiction over final decisions of trial courts |
|
Definition
| Can you appeal midway through a trial? |
|
|
Term
- No, the granting of partial summary judgment as to liability only is not appealable under 28 U.S. 1291
- Liberty Mutual Insurance Co. v. Wetzel |
|
Definition
| Is the granting of partial summary judgment (for example, as to liability) appealable? And in what case did we see this in? |
|
|
Term
| Yes; a motion that for summary judgment that was granted is appealable, as granting that motion ends the case |
|
Definition
| Suppose a motion for summary judgment is granted. Can this be appealed? |
|
|
Term
| No; a motion that for summary judgment that was denied is not appealable, as the denial of that motion does not end the case, and the case still goes on |
|
Definition
| Suppose a motion for summary judgment is denied. Can this be appealed? |
|
|
Term
| Yes; P can appeal, as granting a motion to dismiss for lack of subject-matter jurisdiction would end the case |
|
Definition
| Suppose P sues D. D moves to dismiss on the ground that there is no subject-matter jurisdiction. Court grants D’s motion. Can P appeal? |
|
|
Term
| No; D cannot appeal as denying a motion to dismiss for lack of subject-matter jurisdiction does not end the case (the case would still go on) |
|
Definition
| Suppose P sues D. D moves to dismiss on the ground that there is no subject-matter jurisdiction. Court denies D’s motion. Can D appeal? |
|
|
Term
| 28 U.S.C. 1291 deals with issues of appealability |
|
Definition
| What section of the United States code deals with issues of appealability? |
|
|
Term
| No; this decision is not final, and is not appealable |
|
Definition
| Suppose P sues D. They have a discovery dispute. D refuses to turn over some documents requested by P. P moves for order compelling discovery. It’s denied. Can P appeal? |
|
|
Term
| No; this decision is not final, and is not appealable |
|
Definition
| Suppose P sues D. They have a discovery dispute. D refuses to turn over some documents requested by P. P moves for order compelling discovery. It’s granted. Can D appeal? |
|
|
Term
| The only appealable order is the final decision, which typically means the final judgment that ends the whole case. |
|
Definition
| Basic rule of appealability: |
|
|
Term
| New York does not follow the final judgment rule. Most interlocutory orders are appealable in the New York system. Remember that 28 U.SC. 1291 is a federal statute, and states can do what they want |
|
Definition
| Which state does not follow the final judgment rule? |
|
|
Term
| The more expensive trial is relative to appeal, the more interlocutory appeals make sense |
|
Definition
| The more expensive trial is relative to appeal, the (more/less) interlocutory appeals make sense |
|
|
Term
| When we talk about "final decision", are we talking about all of the claims. Final decision = Final decision on whole case. See Sears Roebuck & Co. v. Mackey note case |
|
Definition
| When we talk about "final decision", are we talking about some of the claims in a decision, or all of the claims? |
|
|
Term
| If a court dismisses case against D1, but doesn’t dismiss case against D2, dismissal against D1 is not appealable until trial for D2 claim is over |
|
Definition
| If a court dismisses case against D1, but doesn’t dismiss case against D2, is dismissal against D1 is appealable? |
|
|
Term
| An interlocutory order is an given in an intermediate stage between the commencement and termination of a cause of action and used to provide a temporary or provisional decision on an issue. Thus, an interlocutory order is not final are generally not appealable |
|
Definition
| What is an interlocutory order? |
|
|
Term
| If you disobey a discovery order, you can be held in contempt. You can then attack the discovery order collaterally by appealing the decision to hold that person in contempt |
|
Definition
| One exception to the general rule that discovery orders are not appealable: |
|
|
Term
| One set of facts usually constitutes a claim |
|
Definition
| What usually constitutes a claim? |
|
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Term
| Rule 54(b) says that a court *may* direct entry of judgment on something that resolves fewer than all the claims. The district court has discretion to file a Rule 54(b) motion. When you have a case with multiple claims and District Court has come to final ruling on some of the claims, it MAY (but is not obliged to) enter final judgment |
|
Definition
| What does Rule 54(b) say? |
|
|
Term
| No; your appeal time starts once the district court enters its final judgment, and you have only 30 or 60 days to appeal. (So you might run out of time before trial ends) |
|
Definition
| Suppose District Court enters judgment under Rule 54(b). Could P say, "I'll wait until the end of case to appeal?" |
|
|
Term
| Rule 54(b) applies to separate claims, not different theories on the same claim |
|
Definition
| Does Rule 54(b) apply to separate claims, or different theories on the same claim? |
|
|
Term
| Rule 54(b) allows final judgment to be entered on the basis that a final ruling ruling has been made on some (but not all) of the claims |
|
Definition
| Rule that allows final judgment to be entered on the basis that a final ruling ruling has been made on some (but not all) of the claims |
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Term
| A District Court might take into consideration how intertwined the facts are when considering to make a Rule 54(b) certification. The more intertwined the facts are, the less likely a court will make a Rule 54(b) certification |
|
Definition
| What kind of considerations would a District Court take into account in deciding whether to make a Rule 54(b) certification? |
|
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Term
| No; Rule 54(b) says that claims can be certified for appeal, but separate issues cannot be certified. This is what happened in Liberty Mutual (granting of partial summary judgment is not appealable) |
|
Definition
| Suppose a Court has found that D is liable but hasn’t figured out yet what remedy is. Can a district court enter judgment under Rule 54(b) on a separable issue - in this case, can the court certify liability for appeal? |
|
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Term
| No; these constitute two separate theories of recovery, not two separate claims. Rule 54(b) only applies to separate claims, not separate theories on the same claim. |
|
Definition
| Suppose you take a pharmaceutical product and it injures you and you sue drug manufacturer and say drug was negligently designed and, even if it wasn’t, manufacturer should be strictly liable. District court says there was no negligence. Can district court certify the ruling (via Ruel 54b) that there is no finding of negligence even though you still have chance to go ahead with strict liability claim? |
|
|
Term
| The question of why someone is liable (i.e. negligence or strict liability) constitutes different theories, not different claims |
|
Definition
| The question of why someone is liable (i.e. negligence or strict liability) constitutes different (theories/claims) |
|
|
Term
| Yes; Rule 54(b) is an exception to the final judgment rule |
|
Definition
| Is Rule 54(b) an exception to the final judgment rule? |
|
|
Term
| Yes; collateral orders are an exception to the final judgment rule |
|
Definition
| Are collateral orders an exception to the final judgment rule? |
|
|
Term
- Yes; a decision that doesn't affect the merits of the case is appealable. In other words, the decision on a separate issue that was “unconnected and separable on the merits” is appealable (also must be effectively unreviewable afterwards)
- Cohen v. Beneficial Industrial Loan Corp. (merits/main claim of the case was whether directors were bilking the shareholders; appeal was about how P had to post security for costs) |
|
Definition
| Is a decision that doesn't affect the merits of the case appealable? And what case is this referenced in? |
|
|
Term
| This relates to the collateral order doctrine; A collateral order is a doctrine pursuant to which an appeal from an interlocutory order may be brought in order to hear and determine claims which are collateral to the merits of the case and which could not be granted adequate review on appeal |
|
Definition
| What happens if something cannot be fixed on appeal? (meaning that appealing later would be of no help) |
|
|
Term
| A collateral order is a doctrine pursuant to which an appeal from an interlocutory order may be brought in order to hear and determine claims which are collateral to the merits of the case and which could not be granted adequate review on appeal |
|
Definition
| What is the collateral order doctrine? |
|
|
Term
Yes:
- Is this separable from the merits? Yes (posting bail has little to do with the crime charged - the merits of the case
- Did District Court's order conclusively determine the issue? Yes (saying you can't get bail is conclusive)
- Is this effectively unreviewable afterwards? (Time waiting in jail has already been taken by the time you wait for judgment on the merits. We can’t go back and release you retroactively if court of appeals determines that you should have been released) |
|
Definition
| Hypo: You get arrested for shoplifting. You say: this is a big mistake. You say: I want to put up bail while trial is pending. District court says: Bail denied, you’ll just have to wait in jail. You say: I want an immediate appeal. Should you be permitted re: collateral order doctrine? |
|
|
Term
| Collateral order: If you convince court of appeals that jury instruction was wrong, that can be fixed. But if you convince court of appeals that you should have gotten bail, that cannot be fixed |
|
Definition
| Collateral order: If you convince court of appeals that jury instruction was wrong, that (can/cannot) be fixed. But if you convince court of appeals that you should have gotten bail, that (can/cannot) be fixed |
|
|
Term
- Yes; Absolute and qualified immunity have been held to be covered by the collateral order doctrine. Immunity is supposed to be an immunity from ever being tried; thus, if immunity is denied, you have to be tried, and this is effectively unreviewable
- Will v. Hallock |
|
Definition
| Are immunities (absolute and qualified immunities) covered by the collateral order doctrine? And which case is this referred to in? |
|
|
Term
No; discovery is an exception to the collateral order doctrine. (Nonetheless, here is the collateral order analysis:)
- Is it separable from the merits of the case? Yes; it’s not connected. It’s a discovery question, it’s unconnected.
- Has the matter been conclusively determined? Yes. District court didn’t say “I’m thinking maybe you should turn that over”
- Is it effectively unreviewable at the end? Once you turn it over, you’ve turned it over. You can’t unproduce the document once it’s produced |
|
Definition
| Hypo: You’re involved in litigation. You get served with discovery request. You say I’m resisting this discovery request. Other side moves to compel discovery. You get told by district court to turn over document. Can you take an appeal under collateral order doctrine? |
|
|
Term
- Is it separable from the merits of the case?
- Has the matter been conclusively determined?
- Is it effectively unreviewable at the end? |
|
Definition
| Three components (questions to ask) of the collateral order analysis: |
|
|
Term
| No; discovery requests are not appealable under the collateral order doctrine |
|
Definition
| Are discovery requests something that can be appealable under the collateral order doctrine? |
|
|
Term
- Pragmatic finality deals with whether an order is "final" enough to be appealed
- Brownshoe (divestiture of subsidiary due to anti-trust violation. Decision was appealable since divestiture would have taken a long time and a lot of effort. Verdict had been reached, remedy had been determined (divestiture), but divestiture still had to be done.) |
|
Definition
| What is pragmatic finality? And what case is this seen in? |
|
|
Term
| The concept of pragmatic finality is rare |
|
Definition
| Is the concept of pragmatic finality common or rare? |
|
|
Term
- Yes; normally, you can only appeal final order that ends the whole case. However, you can appeal the issue of fees and costs, as the case is determined to be ended even though fees and costs are still pending. Your time to appeal runs when other issues have been decided even though fees and costs issue has not been decided
- Budnich |
|
Definition
| Can you appeal issues of fees and costs? And what (note) case is this mentioned in? |
|
|
Term
| You have 30 days (from the time the court clerk enters the judgment) to appeal. However, that clock restarts under certain motions, including motions JNOV (Rule 50b), motions for a new trial (Rule 59), setting side the verdict (relief under Rule 60(b)), and requesting new and amended findings (Rule 52(b)) |
|
Definition
| You have _____ days (from the time the court clerk enters the judgment) to appeal. However, that clock restarts under certain motions, including _____ and ______ |
|
|
Term
| The 30-day "clock" for appeal starts from the time the court clerk enters the judgment |
|
Definition
| When does the 30 day period to appeal begin? (When does the "clock" start?) |
|
|
Term
- A writ of mandamus (for our purposes) is when a party seeks a court order issued from a higher court to a lower court telling it what to do
- La Buy v. Howes Leather Co. (party filed for writ of mandamus asking court of appeals to compel district judge to change his plan to have a master hear a cases because district judge said that his court calendar was "congested") |
|
Definition
| For our purposes, what is a writ of mandamus? And what case is it from? |
|
|
Term
| The courts of appeals get the power to issue the writ of mandamus from the All Writs Act (Section 1651a) |
|
Definition
| Where do courts of appeals get the power to issue the writ of mandamus? All Writs Act |
|
|
Term
Writs of Mandamus are generally used for:
- Abuse of power
- Abuse of discretion
(In other words, district court decision must be really bad) |
|
Definition
| Why are writs of mandamus generally used for? |
|
|
Term
| No; writs of mandamus cannot be used in lieu of appeals |
|
Definition
| Can a writ of mandamus be used in lieu of appeals? |
|
|
Term
| Orders granting or denying injunctions are appealable under Rule 1291(b) |
|
Definition
| What kind of interlocutory orders can be appealable under Rule 1291(b): |
|
|
Term
| You could try to seek mandamus if you get ordered to produce something in discovery and you don’t want to produce it. But you are not likely to get it; You’d better have a really good reason why discovery should not be compelled because generally, courts of appeals don’t want to get involved in discovery matters |
|
Definition
| Suppose you get ordered to produce something in discovery and you don’t want to produce it. Can you seek mandamus? |
|
|
Term
| Rule 1292(b): District court has issued an order, but recognizes that there are substantial grounds for difference of opinion, and getting this resolved now could materially advance the whole litigation. Thus, it can permit an appeal |
|
Definition
| What does Rule 1292(b) permit regarding appeals? |
|
|
Term
| Rule 54(b) appeals are discretionary, not mandatory |
|
Definition
| Are Rule 54(b) appeals mandatory or discretionary? |
|
|
Term
| Section 1292(b) appeals are discretionary, not mandatory |
|
Definition
| Are Section 1292(b) appeals mandatory or discretionary? |
|
|
Term
| Notices of appeals must be filed with the District Court (not the Court of Appeals) |
|
Definition
| Are notices of appeal filed with the District Court, or the Court of Appeals? |
|
|
Term
| If you make a mistake in calculating appeal time (for example, you are one day late), the appeal is dismissed. There are some avenues for getting appeal time extended, but otherwise, the appeal is automatically dismissed |
|
Definition
| What happens if you make a mistake in calculating appeal time (suppose you are one day late): |
|
|
Term
- Rule 54(b) applies in multi-claim or multi-party cases
- Rule 54(b) has to be something that resolves claims, but not the whole case
- Rule 1292(b) can deal with any order in the case
- There’s no requirement of materially advancing the litigation under Rule 54(b)
- So it’s just two different sets of requirements |
|
Definition
| How is a certified appeal under Rule 1292(b) different from certified appeal under Rule 54(b)? |
|
|
Term
| Permanent injunctions are injunctions issued at the end of a case |
|
Definition
| What are permanent injunctions? |
|
|
Term
| Preliminary injunctions are ordered while the case is still pending. (It just tells the party: "Do this now while we're working out what your legal obligations are") |
|
Definition
| What are preliminary injunctions? |
|
|
Term
| Section 1292 deals with preliminary injunctions |
|
Definition
| Does Section 1292 deal with preliminary or permanent injunctions? |
|
|
Term
- Yes; D can appeal under Rule 1292(a), as he's being forced to do something (not publishing the recipe).
- Yes; Coke can appeal under Rule 1292(a). You can't un-publish something once the public has gotten ahold of it. So 1292 allows appeals in both directions |
|
Definition
| Suppose D is about to publish something secret, like Coke recipe. Coke says: we have evidence that you stole the recipe. There are some factual issues which would require a trial. Coke seeks an injunction. Can D appeal under Rule 1292(a) if the injunction is granted? Can Coke appeal under Rule 1292(a) if the injunction is denied? |
|
|
Term
| No; a temporary restraining order, which is not considered to be a preliminary injunction. Example: If Coke finds out D is going to publish a recipe tomorrow, there's no time to get in court to hear both sides of story (preliminary injunctions requires court to hear from both sides) |
|
Definition
| Is a temporary restraining order the same thing as a preliminary injunction? |
|
|
Term
| A court has to hear from both sides before a preliminary injunction can be received |
|
Definition
| Which sides need to be heard from for a preliminary injunction to take place? |
|
|
Term
- A temporary restraining order lasts 14 days
- During those 14 days, court will hear from both sides and decide whether to issue a preliminary injunction |
|
Definition
| How many days does a temporary restraining order lasts? And what happens during that time period |
|
|
Term
| If the federal government is a party, then both sides have 60 days to file an appeal |
|
Definition
| Under what special circumstance do you have 60 days to appeal? |
|
|
Term
- Judgment is a piece of paper which will say (for example) “for the reasons described in my opinion, summary judgment is granted”
- Entry of judgment is just that - entry of judgment |
|
Definition
| What is the difference between judgment and entry of judgment? |
|
|
Term
- Motions JNOV (Rule 50b)
- Motions for a new trial (Rule 59)
- Setting side the verdict (relief under Rule 60(b))
- Requesting new and amended findings (Rule 52(b)) |
|
Definition
| Which motion can you file that, if it's timely, then appeal clocks stops running and doesn't start again until the last motion is filed? |
|
|
Term
| No; you do not have a right to an interlocutory appeal. While interlocutory appeals can be certified, it is up to the judge's discretion |
|
Definition
| Do you have a right to an interlocutory appeal? |
|
|
Term
| No. Appeals court have no jurisdiction over your appeal if the notice is late |
|
Definition
| Do appeals court have jurisdiction over your appeal if the notice is late? |
|
|
Term
| If you don’t file timely notice of appeal, it’s dismissed |
|
Definition
| What happens if you if you don’t file timely notice of appeal? |
|
|
Term
| Appellate court can consider (i.e. review) whether district court properly dismissed for lack of jurisdiction once the case as a whole becomes appealable |
|
Definition
| Hypo: Can appellate court consider whether district court properly dismissed for lack of jurisdiction? |
|
|
Term
- No; an appellate court may not consider on appeal an issue not raised in the pleadings or raised at the trial level
- J.F. White Contracting Co. v. New England Tank Industries of New Hampshire, Inc. |
|
Definition
| Can an appellate court consider on appeal an issue that was not raised in the pleadings or raised at the trial level? |
|
|
Term
| If an error might have been harmless, but we are not confident that it was harmless, the court should remand the case |
|
Definition
| If an error might have been harmless, but we are not confident that it was harmless, what should the court do? |
|
|
Term
| No; harmless errors are disregarded on appeal |
|
Definition
| Are harmless errors considered on appeal? |
|
|
Term
- Normally, no; A party cannot appeal a judgment in his favor for obtaining a review of findings he deems erroneous
- In Electrical Fittings Corp. v. Thomas & Betts Co., an appeal of a subsidiary finding was allowed, but this is not the normal rule (Patent infringement case in which D won a case - meaning he didn't infringe patent - but wanted to appeal because patent was still determined to be valid - and he wanted a judgment that patent was not valid)
- The normal rule can be found in Maltbie: Normally, when you win a case, you can't take an appeal because you don't like some subsidiary finding |
|
Definition
| Can a party appeal a judgment in his favor for obtaining a review of findings he deems erroneous? And what cases are these from? |
|
|
Term
| No; the review of subsidiary findings are not barred under res judicata |
|
Definition
| Is the review of subsidiary findings barred under res judicata? |
|
|
Term
- No new issues on appeal
- Harmless errors are disregarded on appeal |
|
Definition
| Two important principles from J.F. White: |
|
|
Term
| International Ore & Fertilizer Corp. v. SGS Control Services, Inc. |
|
Definition
| What case deals with the issue of cross-appeals? |
|
|
Term
| Yes; a federal appeals court can decide an issue that an appellee fails to raise in a cross-appeal. Generally, this would not be the case; however, an appellee may argue in support of a decree by using anything in the record, even if it contradicts the trial judge’s reasoning in some way (however, if you didn't cross-appeal, you can't get any more than you already got in the lower court. You can only make an argument in favor of sustaining the judgment below, provided that it appears in the record). While you can't get more without cross-appealing, you can get as much on a different (or any) ground (so long as it appears in the record) |
|
Definition
| Can a federal appeals court can decide an issue that an appellee fails to raise in a cross-appeal? |
|
|
Term
| No; if you don't cross-appeal, you cannot get any more than what you already got in the lower court |
|
Definition
| If you don't cross-appeal, can you get any more than what you already got in the lower court? |
|
|
Term
| While you can't get more without cross-appealing, you can get as much on a different (or any) ground (so long as it appears in the record). Thus, even though you didn't cross-appeal originally (on denial of SOL motion), you can then appeal again |
|
Definition
| Hypo: Suppose someone sues you saying that you could have saved me if you shouted to me before I walked in front of a car. You say: there’s no duty to save. And even if it were a tort, the SOL is 3 years and this happened 5 years ago. So you move to dismiss on two grounds: 12(b)(6) and SOL. Court grants 12(b)(6) motion and denies the SOL motion. P appeals the denial of the 12(b)(6) motion, and you don’t appeal (the SOL motion). Court of appeals says: this actually does state a claim (thus overturning the 12(b)(6) denial). What’s the test for whether you can raise something even if you didn’t cross appeal? |
|
|
Term
| The standard of review is analogous to instant replay and referee review in sports |
|
Definition
| What legal concept is analogous to instant replay and referee review in sports? |
|
|
Term
| The de novo standard of review is analogous to the standard of review used by the AL Commissioner MacPhail |
|
Definition
| What legal standard of review is analogous to the standard of review used by the AL Commissioner MacPhail in the George Brett pine tar incident? |
|
|
Term
| The abuse of discretion standard of review is analogous to the standard of review used in the NFL |
|
Definition
| What legal standard of review is analogous to the standard of review used in the NFL? |
|
|
Term
| On the facts, we want a clear error standard because the person who is in the best position to know the facts is the person who did the review of the facts |
|
Definition
| On the facts, we want a ______ standard because the person who is in the best position to know the facts is the person who did the review of the facts |
|
|
Term
| On the law, we want appellate court to apply a de novo standard because they’re the experts about review |
|
Definition
| On the law, we want appellate court to apply a _______ standard because they’re the experts about review |
|
|
Term
| Questions of fact are reviewed deferentially |
|
Definition
| Questions of (fact/law) are reviewed deferentially |
|
|
Term
| Questions of law are reviewed de novo |
|
Definition
| Questions of (fact/law) are reviewed de novo |
|
|
Term
| Regarding the standard of review, do we want the review of law to be uniform, and the review of facts to be non-uniform |
|
Definition
| Regarding the standard of review, do we want the review of (facts/law) to be uniform, and the review of (facts/law) to be non-uniform |
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Term
| "Clearly erroneous" is the standard (i.e. key words) for abuse of discretion review |
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Definition
| The standard (i.e. key words) for abuse of discretion review |
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Term
| "No deference" is the standard (i.e. key words) for de novo review |
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Definition
| The standard (i.e. key words) for de novo review |
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Term
- Discriminatory intent in the Pullman-Standard case is a factual finding (not a legal finding)
- Thus, the standard of review (should have) been applied is abuse of discretion |
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Definition
| Was discriminatory intent in the Pullman-Standard case a factual finding, or a legal finding? Thus, which standard of review (should have) been applied? |
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Term
- The ultimate fact is one that determines litigation. There’s no special rule for review of ultimate facts as opposed to subsidiary facts. So it’s reviewed according to clearly erroneous standard.
- Pullman-Standard v. Swint |
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Definition
| What is the "ultimate fact" in litigation? And what case is this referenced in? |
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Term
| No; the standard of review of facts does not differ if the facts are derived from oral works vs. normal documents. Rule 52(a)(6) says any finding of facts - no matter whether it's oral or documentary - shall be set aside only if they're clearly erroneous |
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Definition
| Does the standard of review of facts differ if the facts are derived from oral works vs. normal documents? |
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Term
- Review of “actual malice” determination (regarding public figure) was not limited by the “clearly erroneous” standard of Rule 52(a) and that it must perform a de novo review of the record to evaluate the District Court’s application of the governing constitutional standard (note: this is very rare).
- Bose Corp. v. Consumers Union of United States, Inc. |
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Definition
| What is the standard of review regarding "special malice" (regarding public figures)? And what case is this from? |
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Term
- Yes; Statutory authority that permits appellate courts to set aside verdicts on the grounds that the findings of fact were not supported by the evidence is neither unconstitutional nor against the practice at common law
- Corcoran v. City of Chicago |
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Definition
| Can a motion to set aside a verdict reviewable by an appellate court? And what case is this from? |
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Term
- We want things to be final and resolved
- If we allowed people to sue again, and judgment came out the other way – we would never know which one is right
- It would be costly – we don’t have time and money to try cases twice |
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Definition
| What is the rationale for res judicata? |
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Term
- Whether or not injuries to both person and property resulting from the same wrongful act are to be treated as injuries to separate rights or as separate items of damage, a plaintiff may maintain only one lawsuit to enforce his rights existing at the time such action is commenced
- Rush v. City of Maple Heights |
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Definition
| Suppose injuries occur (to either a person and property) resulting from the same wrongful act. Should these suits be brought separately or together? And what case is this from? |
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Term
| No; You can’t sue again just because you don’t like the damage award. (This would be very costly) |
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Definition
| Hypo: Suppose you sue D in case 1 and you win. Jury awards you $10k. You want higher damages, so you sue again. Can you do that? |
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Term
| No; Different legal theories don't allow you to get around basic theory of preclusion when the incident occurs from the same transaction/incident |
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Definition
| Does a different legal theory that comes from the same transaction/incident allow you to get around the basic theory of preclusion? |
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Term
| Your cause of action has “merged” with the judgment. Whereas if you sue someone and lose, the judgment against you is said to “bar” the claim |
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Definition
| Claim preclusion: Your cause of action has ________ with the judgment. Whereas if you sue someone and lose, the judgment against you is said to ______ the claim |
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Term
| Claim preclusion is often known as res judicata, and issue preclusion is often known as collateral estoppel |
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Definition
| Claim preclusion is often known as ________; and issue preclusion is often known as ___________ |
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Term
| The issue here is the resulting (libel) lawsuit, not about the first (DUI) suit, so issue preclusion would not apply. Issue preclusion precludes litigation of issues that were actually litigated or necessarily decided in previous litigation |
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Definition
| Hypo: Imagine that you sued D for car accident. You say D was negligent in that he was driving drunk. That is the finding of fact. A few years later, D is running for mayor and you write a letter to newspaper telling people not to vote for him b/c he was drunk driving. D sues you for libel. You say: What I said was true. What is the effect of Case 1 (DUI) on this lawsuit (label)? And does issue preclusion apply? |
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Term
| The same lawsuit being re-litigated would be an example of claim preclusion. If some part of a claim is the same, this would be an example of issue preclusion |
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Definition
| The same lawsuit being re-litigated would be an example of_______ preclusion. If some part of a claim is the same, this would be an example of _____ preclusion |
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Term
| Issue preclusion; there is a common fact (injury) between the two |
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Definition
| Hypo: Employee sues employer for on-the-job injury. Employee loses in a special verdict, in which jury says employee was faking injury. Employee files a different suit, for discrimination re: the injury. What kind of preclusion is this? |
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Term
| The case of Rush v. City of Maple Heights (P sues for damage to motorcycle, then sues again for personal injury) is an example of claim preclusion |
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Definition
| Did the case of Rush v. City of Maple Heights (P sues for damage to motorcycle, then sues again for personal injury) an example of claim or issue preclusion? |
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Term
| No; this would be an example of claim preclusion. P should not be allowed to split her claims. She should be required to bring them altogether. Court says we don’t want P to vex the defendant with a multiplicity of lawsuits. |
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Definition
| If you sue on a claim arising out of a particular incident and you win. And then you say “I have another claim arising out of the same incident.” Can you sue again on the second claim? |
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Term
| No; the claims do not have to be exactly the same for claim preclusion to apply (example: Rush v. City of Maple Heights (P sues for damage to motorcycle, then sues again for personal injury) |
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Definition
| Do the claims have to be exactly the same for claim preclusion to apply? |
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Term
| No; you are not allowed to split your claim if it arises out of the same incident |
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Definition
| Are you allowed to split your claim if it arises out of the same incident? |
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Term
| Raise any claims you may have in the first lawsuit |
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Definition
| What incentive does the rule of claim preclusion apply to the plaintiff? |
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Term
| No; while it may seem harsh from the ex poste perspective to tell P she has to lose her $12k claim because she brought her $100 claim, we have to think about incentives we’re going to create for future plaintiffs |
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Definition
| Suppose P brings a claim for $100. Later on, P wants to bring a claim arising from the same incident for $12,000. Can P do this? |
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Term
| No; this would involve claim preclusion, as the claims arise from the same transaction (we want to encourage people to bring all your claims in one case) |
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Definition
| Hypo: You take your car in for a brake job and mechanic fixes brakes. Later, the brakes go out and you crash. You’re hurt, and the car is damaged. You sue mechanic for negligently fixing brakes. You lose. You sue the mechanic again saying: We had a contract and it was implicit in the contract that you were going to do a competent job. So you sue again. Can you bring Claim 2? |
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Term
- No; the second claim is not barred because it's an entirely different issue
- Yes; you could have brought Claim 2 originally in Claim 1 (Rule 18, Joinder of Claims) - not required, though (We want to give people a chance to bring their claims when they’re ready) |
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Definition
| Hypo: Car accident. You sue D in car accident. You lose. Then you say: By the way, this same D happens to be my neighbor and I have a dispute about property line. So you sue about that. D says: You just sued me and you lost. Is this claim barred? (Additionally, could you have brought this claim in the original suit?) |
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Term
| In determining which claim is barred because of prior litigation, the test that most courts apply is the transactional test |
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Definition
| In determining which claim is barred because of prior litigation, the test that most courts apply is the _________ test |
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Term
| We have seen the transaction test in Civ Pro I, regarding rules of joinder (You can even say that the transactional test for claim preclusion is effectively a rule of compulsory joinder) |
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Definition
| Where have we seen the transaction test before? |
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Term
| The mantra of "You have to bring this now, or it will be barred later" refers to claim preclusion (this is effectively the transaction test for preclusion) |
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Definition
| The mantra of "You have to bring this now, or it will be barred later" refers to what? |
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Term
| No; the rule of claim preclusion does not change whether P wins or loses Case 1. When P brings a lawsuit, he is forbidden from bringing a second lawsuit against the same D on the same claim |
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Definition
| Does the rule of claim preclusion change whether P wins or loses Case 1? |
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Term
| Yes; You will be barred from using different theories arising out of the same facts – such as a tort theory or contract theory; what matters are the facts |
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Definition
| Does claim preclusion bar you from using different theories arising out of the same facts (such as a tort theory or contract theory)? |
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Term
| This would probably be one claim, but this could technically go either way. There is no universal definition of “claims”. Restatement: Related in “Time, Space, Origin”. (This example: "Time, space") |
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Definition
| Hypo: You get into car accident. Other driver is so upset that he punches you. You sue for car accident. Could you sue separately for the battery? |
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Term
| "Time, space, and origin" are three words that are used to determine if two separate incidents constitute the same claim |
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Definition
| What are three words that are used to determine if two separate incidents constitute the same claim? |
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Term
| Probably; at some point, this becomes a separate matter, and a month later is probably enough that it is different. There’s no hard and fast rule that will definitively tell you what is the same or different. This brings an incentive for P: Bring everything you might possibly have against D because otherwise you might lose opportunity to bring it later |
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Definition
| Suppose a car accident occurs between P and D. Say a month after the accident, D publishes mean things about you on his website. Could you sue him for libel? |
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Term
| Yes; a claim is defined by a set of facts. Even though you have a different theory, this is irrelevant. This is true even though the defendant (first suit: individuals), second suit: company itself) are technically different (The parties in this action are in privity with those in the earlier suit) |
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Definition
| Case 1: The guy was kicked out of racetrack and he was convicted of disorderly conduct. He sued individual employees who threw him out. He claimed assault and libel. He lost. On Case 2: Same P claims false arrest, malicious prosecution, false imprisonment arising from same incident, and sues the corporation (note the different defendant). D says “Claim preclusion.” Was it claim preclusion? And what case is this from? Mathews v. New York Racing Association, Inc. |
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Term
| Mathews v. New York Racing Association, Inc. |
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Definition
| The issue of preclusion and individual/corporate liability arises in which case? |
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Term
- No; the second suit was barred by claim preclusion. In the first case, the bank should have sued for everything it was owed.
- Jones v. Morris Plan Bank of Portsmouth |
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Definition
| Suppose a bank sues to claim money, but does not sue for all of the money it is owed. Later, on the same basis, it wants to sue for the rest of the money. Can it do so re: preclusion? And what case is this from? |
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Term
- No; the claim was barred by res judicata. The fact that the rent was due at time of lawsuit did not require landlord to sue for all the rent because the acceleration clause was discretionary. Note that P is only required to sue for those breaches that have occurred at the time of the suit, but you are required to sue for those
- Aiglon Associates Ltd v Allan |
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Definition
| Hypo: P was the owner of a shopping center. P rented space to D. The contract between P and D had an acceleration clause that said something to the effect of: “In event of nonpayment of any installment, holder of the note MAY CHOOSE to sue for all installments due on the contract”. D spent a couple of months making alterations to the space. D decided not to take the space. P re-entered the space, spent some time undoing the half-done alterations, and sued D. P obtained judgment for three months of rent that hadn’t been paid plus cost of undoing the alterations. P then sued again a few months later seeking more unpaid rent. Was this claim barred by res judicata? And what (note) case is this from? |
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Term
| You sue for everything you’re owed at the time of the suit. Or you could write the contract so it says “in event of nonpayment of any installment, holder of the note MAY CHOOSE to sue for all installments due on the contract” |
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Definition
| What is the basic rule that tells you if you are a P in a contract case what to sue for to avoid being barred later? |
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Term
| Yes; a P required to sue for contract breaches that have occurred at the time of the suit (exception: bonds) |
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Definition
| Is a P required to sue for contract breaches that have occurred at the time of the suit? |
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Term
| No; unlike in regular contracts, in the special case of bonds, you can choose which ones you want to sue on. |
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Definition
| In the case of bonds, do you have to sue for everything at one time? |
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Term
| The transaction test is the test for preclusion in federal courts, and the a majority of state jurisdictions |
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Definition
| The _______ test is the test for preclusion in federal courts, and the a majority of state jurisdictions |
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Term
| The primary rights test is a minority rule for preclusion. In the primary rights test, what really matters is which of your rights was infringed. Each of your rights gives rise to a separate claim that can be sued on separately. |
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Definition
| What is the minority rule for preclusion? |
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Term
- Yes. If you don’t like a judgment, you have to appeal. We stick with judgments even if they’re wrong.
- Federated Department Stores, Inc. v. Moitie |
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Definition
| Suppose two plaintiffs sued for antitrust and the claims got consolidated and then dismissed. Some Ps don't appeal. Instead, they refiled in state court. Defendants removed to federal court. Other Ps appealed, and the judgment was reversed. It was only reversed as to them. Defendants said that Ps were barred by re-filing by Claim 1. Are they barred by claim preclusion? (And what note case is this from?) |
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Term
- Stare decisis is about applying the same rule of law in a later case. Stare decisis applies even though parties in first case are totally different from the parties in the second case. Stare decisis is a guideline, not completely binding - We don’t want to be bound forever just because some court issues a stupid decision.
- Claim preclusion is much more about facts. It’s much more particularized. Claim preclusion arises when two cases have the same facts in common. |
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Definition
| How does stare decisis differ from claim preclusion or issue preclusion? |
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Term
| Claim preclusion usually applies to plaintiffs (although it can apply to defendants if they file, for example, a counter-claim) |
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Definition
| Who does claim preclusion usually apply to? |
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Term
| Claim preclusion could apply to defendants if, for example, they file a cross-claim |
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Definition
| When could claim preclusion apply to defendants? |
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Term
| No; claim preclusion applies to defendants as well as plaintiffs |
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Definition
| Hypo: P suing landlord for failing to maintain habitability. D (landlord) sues for unpaid rent. Could D sue for part of the unpaid rent now and part of the unpaid rent later? |
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Term
| Under the transactional test, a claimant in one case is barred from bringing second case against same defendant on the same claim that could have been brought but wasn’t |
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Definition
| Under the _____________ test, a claimant in one case is barred from bringing second case against same defendant on the same claim that could have been brought but wasn’t |
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Term
| Issue preclusion is different from claim preclusion in that issue preclusion deals with issues that were actually litigated and decided, while claim preclusion deals with issues that could have been litigated |
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Definition
| Issue preclusion is different from claim preclusion in that _____ preclusion deals with issues that were actually litigated and decided, while _____ preclusion deals with issues that could have been litigated |
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Term
- No; A defendant cannot use a defense to win a claim, and then use that same defense in a second claim on the same transaction?
- Mitchell v. Federal Intermediate Credit Bank |
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Definition
| Can a defendant use a defense to win a claim, and then use that same defense in a second claim on the same transaction? And what case is this from? |
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Term
- Yes; it can now under the majority rule in Linderman Machine Co.
- Hypo is from Mitchell v. Federal Intermediate Credit Bank. That is the minority rule (allowing mutual defense issue preclusion). The majority rule is from Linderman Machine Co. v. Hillenbrand |
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Definition
| Hypo: Bank (P) sues D on $9k note. D uses claim defensively and wins. But then on a second claim, D tries to use that claim in an action against the same P. Can this second claim be brought? And what case is this from? |
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Term
| Rule 13(a) - compulsory counterclaims - makes Linderman the majority rule (as opposed to Mitchell). The rule states if you have any claims against a plaintiff arising our of the same transaction/occurrence, you must bring this claim. If you don't, it will be barred. Hence why the second claim isn't precluded - it's allowed due to Rule 13(a) |
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Definition
| What federal rule makes the Linderman case the majority rule (as opposed to Mitchell)? |
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Term
| Yes; most states have rules such as Rule 13(a), requiring compulsory counterclaims |
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Definition
| Do most states have rules such as Rule 13(a), requiring compulsory counterclaims? |
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Term
| According to Rule 13, D should have brought this in the original case |
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Definition
| P sues D for negligence in car accident. D says he wasn’t negligent. Now you separately sue original P for negligence. Can you do that? |
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Term
| The bottom line about defensive preclusion is that these cases about it are not important under the modern system because Rule 13 (compulsory counterclaims) has taken over the question of whether there’s a common law doctrine that would apply preclusion |
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Definition
| The bottom line about defensive preclusion is that these cases about it are not important under the modern system for what reason? |
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Term
| True: Claim preclusion applies to claims brought in Case 1 and claims that *could* have been brought in claim 1 |
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Definition
| True/False: Claim preclusion applies to claims brought in Case 1 and claims that *could* have been brought in claim 1. |
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Term
| No; issue preclusion doesn't apply to something that could have been litigated in Case 1 but was not. Issue preclusion only applies to things that were actually litigated in Case 1. |
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Definition
| Does issue preclusion apply to something that could have been litigated in Case 1, but was not? |
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Term
| We have the rule that issue preclusion only applies to things that were actually litigated in the first case because we do not know what issues might be relevant between the parties at some later date. Otherwise, parties would have too much incentive to bring too many issues, and they will start bringing in any random issue |
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Definition
| Why do we have the rule that issue preclusion only applies to things that were actually litigated in the first case? |
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Term
| Issue preclusion, unlike claim preclusion, only extends to things that were actually litigated |
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Definition
| _______ preclusion, unlike ______ preclusion, only extends to things that were actually litigated |
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Term
| "Actually litigated" must the issue must have been actually litigated and it got decided; if Case 1 is a default judgment, then it has no preclusive effect |
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Definition
| When it comes to issue preclusion, what does "actually litigated" mean? |
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Term
| D is wrong; there were two possible findings (that either D was not negligent, or P was negligent...remember this is a contributory negligent jurisdiction) that could have supported the general verdict. We don't know which the jury found, so there is no issue preclusion |
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Definition
| Hypo: P and D get into car accident. This happens in contributory negligence jurisdiction. D says I was not negligent but P was. Jury returns a general verdict for D. Then later D sues P for his own injuries. P says I wasn’t negligent, and D was. D says both of those issues were already decided in the first case. Is D right or wrong about that (i.e. is there issue preclusion?) |
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Term
- No. P is not barred by claim preclusion, because claim arises from a different set of facts.
- No; D is not barred from litigating again, as the general verdict in the first case didn't resolve which of those two claims on the patent was valid (thus, there is no preclusive effect).
- This is from Russell v. Place |
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Definition
| Hypo: P sues D on patent infringement and wins (meaning patent was valid, and it had been infringed). P then sued D again for patent infringement, saying that D was still infringing my patent. Is P barred by claim preclusion? Is D barred from defensive use of preclusion? And what case is this from? |
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Term
| If jury verdict means it must have found for a party because of A *or* B, then there is not issue preclusion on either A or B (meaning second claim could be brought, as we don't know what issue the case was decided on) |
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Definition
| If jury verdict means it must have found for a party because of A *or* B, then there’s (is/is not) issue preclusion on either A or B |
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Term
| If jury verdict means it must have found for a party because of A *and* B, then there is issue preclusion on either A or B (meaning second claim cannot be brought, as we know what issue the case was decided on) |
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Definition
| If jury verdict means it must have found for a party because of A *and* B, then there’s (is/is not) issue preclusion on either A or B |
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Term
| Yes; in issue preclusion, Case 1 and Case 2 can be about two completely different things |
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Definition
| In issue preclusion, can Case 1 and Case 2 can be about two completely different things? |
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Term
| "Necessarily decided" refers to a fact that was necessary for the decision to be made. If the fact was not that way, the decision would be reversed/different |
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Definition
| What does the concept of "necessarily decided" refer to regarding issue preclusion? |
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Term
| No; second claim is precluded, as continuing infringement hadn't happened yet |
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Definition
| Is continuing infringement (following a verdict on a first infringement claim) something that is barred by preclusion? |
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Term
| Yes; if a Case 1 finding was necessary for Case 2, then both get a preclusive effect |
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Definition
| If a Case 1 finding was necessary for Case 2, does it get a preclusion effect? |
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Term
| No; if a Case 1 finding was not necessary for Case 2, neither claim gets a preclusive effect |
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Definition
| If a Case 1 finding was not necessary for Case 2 (because it cut the other way), does it get a preclusion effect? |
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Term
- The finding in Case 1 wasn't necessarily litigated. Because the determination that C was negligent was not necessary to the judgment in Case 1 (nobody would have recovered anyways if C wasn't impleaded), there is no preclusion, as there is no issue preclusion to a fact that was not necessary to the judgment in Case 1
- Rios v. Davis |
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Definition
Hypo:
- In Case 1, A sues B. B impleads C. In a special verdict (requiring findings of fact), all three were found to be negligent, and all recovery was denied.
- In Case 2, C sues B. B says it was determined in Case 1 that C was negligent, so C shouldn't recover. Was the finding in Case 1 necessarily litigated? And what case is this from? |
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Term
- The Restatement takes the position that when there are multiple independent grounds that support the judgment, there’s no preclusive effect as to any of them except if the losing party does actually appeal. Then that party is bound by whatever happens on appeal.
- No; the Restatement here is not universally followed |
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Definition
| What does the Restatement say when there are multiple independent grounds that support a judgment? And is this universally followed? |
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Term
| Yes; both judgments get preclusive effect. R's judgment gets preclusive effect because of issue preclusion. D also has issue preclusion since he won in the first case. If findings in Case 1 are both necessary to the judgment, they both get preclusive effect |
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Definition
| Hypo: D sues R. Jury finds that R was negligent and D was not, and thus finds for D. Then, R sues D. Is there preclusive effect? |
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Term
| It depends on how you characterize the issue. The issue in Case 1 was whether B was negligent. But that had to do with negligence due to speeding, not texting. But a court might judge negligent to = negligent either way, meaning issue would be precluded (this is what Restatement would say). |
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Definition
| Hypo: A sues B in car accident. A claims that B was negligent due to speeding. Judgment goes for B. There was finding that B was not speeding. Then B sues A for B’s own injuries in the same accident. A says “B was contributorily negligent. Negligence was that B was texting on his cell phone and wasn’t paying sufficient attention.” Should A be able to raise this issue? |
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Term
| Yes; B can raise defense that he was of unsound mind on Feb. 2, as something may have changed between Feb. 1 and Feb. 2. But if D has no evidence that something changed between the two dates, essentially the case would be decided on the same evidence |
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Definition
| Hypo: A and B enter into contract on Feb. 1. A sues B for breach. B defends that on Feb. 1, he was of unsound mind. Nonetheless, A wins; It is determined that B was of sound mind. Later, A sues B for breaching another contract they entered into on Feb. 2. Can B raise defense that he was of unsound mind on Feb. 2? |
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Term
- If the judgment would have been the different if the finding on that issue is changed, then the judgment was "necessarily decided", and there is preclusive effect.
- If the judgment would have been the same if the finding on that issue is changed, then the judgment was not "necessarily decided", and there is no preclusive effect. |
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Definition
| Basic test to determine "necessarily decided": |
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Term
| The main theme in applying the rules of preclusive effect is: In applying these rules of preclusive effect, we have to apply logic |
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Definition
| Main theme in applying the rules of preclusive effect |
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Term
| No; an unmixed question of law is not subject to issue preclusion |
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Definition
| Is an unmixed question of law subject to issue preclusion? |
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Term
- SCOTUS said that this should not be re-litigated (agreed with A).
- United States v. Moser |
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Definition
- Hypo: A is a retired naval captain. He claimed he was entitled to retirement pay of admiral because he served in the Civil War. Navy said: You were a cadet in the Civil War, that doesn’t count as service. A won in first claim, so the government paid him the higher pay for that year. However, in subsequent years, the government went back to giving him a captain's pay. A continued to sue. Case reaches SCOTUS, and A says this was litigated in Case 1. What did the Supreme Court say?
- And what (note) case is this from? |
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Term
| No; A is not barred for making this argument, as this involves a different set of facts (it is a whole new contract). If a same question of law exists, but it arises on a new question of facts, then there is no preclusion |
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Definition
Hypo: Suppose A and B have a contract. A sues B for breach of contract and tries to enforce liquidated damages clause. B says that wasn’t a liquidated damages clause, that was a penalty. B wins on that defense.
- A few years later, the parties enter into another contract which also has a liquidated damages clause. A sues B for breach. A wants to argue that penalty clauses are in fact enforcement. Is A barred from making that argument? |
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Term
| If a same question of law exists, but it arises on a new question of facts, then there is no preclusion |
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Definition
| If a same question of law exists, but it arises on a new question of facts, is there preclusion? |
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Term
| If there's a question of law as applied to particular facts, there is preclusion |
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Definition
| If there's a question of law as applied to particular facts, is there preclusion? |
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Term
- No; when the same issue recurs between the same parties on new facts, even though they are nearly identical to the facts of the previous case, there is no issue preclusion
- Commissioner of Internal Revenue v. Sunnen |
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Definition
| When the same issue recurs between the same parties on new facts, even though they are nearly identical to the facts of the previous case, is there issue preclusion? And what case is this seen in? |
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Term
- If a legal issue recurs on the same facts, there normally is preclusion. But if the law changes in the meantime, there is no preclusion
- Commissioner of Internal Revenue v. Sunnen |
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Definition
| If a legal issue recurs on the same facts, there normally (is/is not) preclusion. But what if the law changes in the meantime? Is there preclusion? And in what case is this referenced in? |
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Term
| Issues of law in the abstract do not have preclusive effect. Therefore if they arise again between the same parties on new facts, there is no preclusion. But if the second case involves the application to a rule of law on the very same facts, then there is preclusion UNLESS legal climate has significantly changed in the meantime (meaning there would be no preclusion) |
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Definition
| Issues of law in the abstract (do/do not) have preclusive effect. Therefore if they arise again between the same parties on new facts, there (is/is no) preclusion. But if the second case involves the application to a rule of law on the very same facts, then there (is/is no) preclusion UNLESS legal climate has significantly changed in the mean time. |
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Term
| No; issues of law (in the abstract) do not have a preclusive effect |
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Definition
| Do issues of law (in the abstact) have a preclusive effect? |
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Term
| No; if issues arise again between the same parties on new facts, there is no preclusion |
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Definition
| If issues arise again between the same parties on new facts, is there preclusion? |
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Term
| No; there is no preclusion unless the legal climate (i.e. legal facts) has significantly changed in the meantime |
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Definition
| Suppose a second case involves the application to a rule of law on the very same facts. Is there preclusion? |
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Term
| United States v. Stauffer Chemical Co. (inspectors sent to different Stauffer plants across the country, weren't allowed into one) highlights an exception to the rule of issue precluson. If the same issue arises between the same parties on different facts, there is not usually preclusion. But according to Stauffer, sometimes there is |
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Definition
| One case that highlights exception to issue preclusion |
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Term
| Claim and issue preclusive effect both follow from a judgment |
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Definition
| Claim and issue preclusive effect both follow from a _________ |
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Term
| No; there would be no preclusion because the judge is still thinking about the damages; thus, the decision is not final. (“It is traditionally said that judgment of sufficient quality to create preclusion are that the judgment must be valid, final, and on the merits”) |
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Definition
| Jury determines in Case #1 that D is guilty of negligence, but is it still thinking about damages. Would there be preclusion if a second claim was then brought (while still thinking about damages in Claim 1)? |
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Term
- The "Evergreen Doctrine" deals with preclusion. It references "ultimate facts", which are facts upon which the law directly operates. "Mediate facts" are not given preclusive effect. The only preclusive effect should be given to facts that are ultimate facts in Case 2
- No; the "Evergreen Doctrine" is generally rejected. Most courts feel that this doctrine is difficult to apply, and the distinction between ultimate and mediate data is not really a good proxy.
- No; the Restatement rejects the Evergreen Doctrine. The Restatement says that all that matters is whether the fact was an important and necessary fact in Case 1 |
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Definition
| What is the "Evergreen Doctrine", and what subject does it deal with? Is it commonly followed? And does the Restatement agree with it? |
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Term
For a judgment to create preclusion, it has to be:
- Final
- Valid
- On the merits |
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Definition
| For a judgment to create preclusion, is has to be _________ (three things): |
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Term
| No; for the first judgment to be valid, it does not have to be correctIf only correct judgments were given preclusive effect, it would be difficult to determine what’s right or wrong – you’d have to have a whole new trial (It would be like not having preclusion at all) |
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Definition
| In order for a first judgment to be valid, does it have to be correct? |
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Term
| No; the requirement that a judgment be valid does not test whether the court in Case 1 has subject-matter jurisdiction, as challenges to subject-matter jurisdiction are not allowed in Case 2 (it should have been appealed in Case 1. If it wasn't, it's too late in Case 2). |
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Definition
| Does the requirement that a judgment be valid test whether the court in Case 1 has subject-matter jurisdiction? |
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Term
| Yes; the requirement that a judgment be valid does test whether the court in Case 1 has personal jurisdiction, but only if a party defaulted in a first judgment. If you default in Case 1, you are still permitted to challenge personal jurisdiction in a collateral attack. You would be obliged to appear to challenge personal jurisdiction if default judgment was able to be challenged |
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Definition
| Does the requirement that a judgment be valid test whether the court in Case 1 has personal jurisdiction? |
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Term
| "On the merits" is what the case is about. A judgment in which a plaintiff has a "fair chance at the merits" can give rise to a preclusive effect |
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Definition
| What does "on the merits" (a requirement for a judgment to create preclusion) mean? |
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Term
| A plaintiff must have a "fair chance on the merits" for a judgment to have preclusive effect |
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Definition
| A plaintiff must have a ________ on the merits for a judgment to have preclusive effect |
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Term
- Yes; if a P sues D for patent infringment, and a trial leads to result in which judgment is entered, then that judgment is this on the merits
- Yes; A decision on summary judgment is on the merits
- Yes; a motion JMOL (before or after verdict) is on the merits
- Yes; judgment for failure to prosecute (Rule 41) is on the merits |
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Definition
- Hypo: P sues D for patent infringment. Trial leads to result in which judgment is entered. Is this on the merits?
- What about if D moves for summary judgment, and the motion is granted. On the merits?
- What about motion JMOL (before or after verdict) - on the merits?
- What about judgment failure to prosecute (Rule 41) - on the merits? |
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Term
- The rule of mutuality is that a person who benefited from a prior judgment only if they were also bound by it. A judgment was binding only on parties and persons in privity with them, and a judgment could be invoked only by parties and their privies
- The rule of "mutuality" has been relaxed in recent years |
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Definition
| What is the rule of "mutuality"? And what has happened to this rule in recent years? |
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Term
| No; preclusion is not allowed in cases in which one of the parties was not a party to the first case |
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Definition
| Is preclusion allowed in cases in which one of the parties was not a party to the first case? |
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Term
If the parties in Case 2 are different than Case 1, we want to know:
- Who is bound by preclusion?
- Who can assert preclusion? |
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Definition
| If the parties in Case 2 are different than Case 1, we want to know two things: |
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Term
Whenever you have preclusion questions, you always have:
- One party asserting preclusion
- One party have preclusion asserted against them
(Think of these two points separately) |
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Definition
| Whenever you have preclusion questions, you always have two different parties in what roles? |
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Term
| No; C is not bound by the judgment int he first case, as you cannot be bound by the judgment if it’s from a case in which you are not a party, and you are not in privy (doing otherwise would violate Due Process). Because C is not bound by the judgment, this would force B to re-litigate |
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Definition
| Hypo: A sues B; A wins. Out of the same incident, C sues B. Is C bound by the judgment in the first case? |
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Term
| No; only the parties (or their privies) of Case #1 can assert preclusion |
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Definition
| Hypo: A sues B; A wins. Out of the same incident, B sues C. This time, C wants preclusion against him. Can C get this? |
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Term
1) Is there a Due Process question? (This deals with the party whom against preclusion is asserted, as one cannot be bound by a judgment they were not a party (or privy to) in Case #1
2) Is there a mutuality question? (This deals with the party who wants preclusion. Only the parties (and their privies) of Case #1 can assert preclusion) |
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Definition
| Two different questions to ask re: asserting preclusion: |
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Term
| Mutuality trumps the transactional test. |
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Definition
| Which trumps which re: preclusion? Mutuality, or the transaction test? |
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Term
| In general, non-mutual defense issue preclusion is regarded as a good idea by most states |
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Definition
| In general, non-mutual defense issue preclusion is regarded as a good or bad idea by most states? |
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Term
| Relaxation of mutuality is decided jurisdiction-by-jurisdiction |
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Definition
| Relaxation of mutuality is decided how? |
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Term
| Is non-mutual issue preclusion is discretionary? |
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Definition
| Is non-mutual issue preclusion required or discretionary? |
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Term
| Parklane Hosiery Co. v. Shore deals with non-mutual offensive preclusion. It held that a litigant who was not a party to a prior judgment is not per se precluded from using that judgment “offensively” to prevent a defendant from relitigating issues resolved in that earlier equitable proceeding |
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Definition
| Which case deals with non-mutual offensive preclusion? |
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Term
| Non-mutual offensive preclusion is more controversial than non-mutual defensive preclusion |
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Definition
| What is more controversial? Non-mutual offensive preclusion, or non-mutual defensive preclusion? |
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Term
- If person represents someone else, that person is in privity (i.e. class action)
- Had the kind of relationship with someone who was a party, that it is fair to hold you as bound
- Certain land relationships |
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Definition
| What does in privity with a party mean? |
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Term
| Indemnity cases illustrate the decline of the mutuality doctrine. Where first the P sues someone primarily liable and lost, and in Case 2 sued someone who would be vicariously liable. Thus, cases would arise where there would be issue preclusion, but no mutuality, because the party asserting preclusion (the party that was vicariously liable) was not a party in Case 1. |
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Definition
| What type of cases illustrate the decline of the mutuality doctrine? |
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Term
| No; the second claim is not barred by claim preclusion, because this involves a different claim from a different defendant. Although this is inconsistent with the transactional test of claim preclusion (since it arises from the same transaction), this does not apply between different parties (rule of mutual trumps transaction test for claim preclusion) |
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Definition
| Hypo: A sues B for negligence. A loses (court finds no negligence). A sues C, claiming C was vicariously negligent for the damage caused by B. Is this barred by claim preclusion? |
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