Adjudicating the Dispute

Question 1

Preliminary Injunctive Relief

Answer 1

An order that maintains the status quo until trial is a preliminary injunction (orders a party to either do something or refrain from doing something). Before getting a preliminary injunction, a party may seek a TRO

Question 2

Temporary Restraining Order

Answer 2

A court can issue a TRO ex parte IF:

1) Applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm if he must wait until the other side is heard, AND
2) Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawer

If court issues the TRO, applicant must post a bond to cover the other side’s costs and damages cause if it turns out the restraint is wrongful.

Question 3

What must a TRO state?

Answer 3

Must state its terms in specificity, describe in detail what D must do or refrain from doing and state why it was issued, and why the threatened injury to P was irreparable.

Question 4

How long is a TRO effective for?

Answer 4

No more than 14 days (or lesser time stated by the court). If applicant shows good cause before expiration, it can be extended for up to another 14 days. CANNOT be extended beyond 28 days.

Question 5

Ex Parte

Answer 5

Whenever a court does something without giving notice to the other party

Question 6

Preliminary Injunction

Answer 6

CANNOT be granted ex parte. Burden in on applicant to show:

1) he is likely to suffer irreparable harm if the injunction is not issued;
2) he is likely to win on the merits of the underlying case;
3) the balance of hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued); AND
4) the injunction is in the public interest

Question 7

What must a preliminary injunction state?

Answer 7

Must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued.

Question 8

Is an order granting or denying a preliminary injunction immediately appealable?

Answer 8

Yes, even though not final judgment

Question 9

Pretrial Adjudication

Answer 9

1) Voluntary Dismissal
2) Default and Default Judgment
3) Motion to Dismiss for Failure to State a Claim
4) Motion for Summary Judgment

Question 10

Voluntary Dismissal

Answer 10

If P wants to withdraw the case, P can make a motion for voluntary dismissal:

1) P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But P must do so before the D serves an answer or MSJ
2) If P files a timely notice of dismissal, the case is dismissed “without prejudice”
3) If P files a notice of dismissal in the second case, the dismissal is “with prejudice.”

Question 11

Default and Default Judgment

Answer 11

D does not respond to the complaint in time (21 days after being served with process, 60 days from mailing of waiver if you waived service)

Question 12

Default

Answer 12

Default is a notation by the court clerk on the docket sheet of the case.

1) P must move for default and demonstrate that D failed to respond in time.
2) Until default is entered, D can respond by motion or answer
3) Effect of entry of default: cuts off the D’s right to respond.
4) Entry of default does not entitle P to recover. Before P can recover from D, P must get a default judgment

Question 13

How to get a default judgment?

Answer 13

1) The court of clerk can enter judgment if: D made no response at all; the claim itself if for a sum certain in money; claimant gives an affidavit of the sum owed; AND D is not a minor or incompetent
2) If ANY of those is not true, P must apply to the court itself. The judge will hold a hearing and has discretion to enter judgment.
3) D may move to have the court set aside a default or default judgment by showing good cause and a viable defense.

Question 14

Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6))

Answer 14

Whether the case belongs in the litigation stream at all. If P’s complaint fails to state a claim, the case can be dismissed.
1) Court ignores P’s legal conclusions and looks only at P’s allegations of fact in the complaint. Asks, “if these facts were true, would P win a judgment?”

Question 15

Motion for Summary Judgment (FRCP 56)

Answer 15

Party moving for SJ must show:
1) there is no dispute on a material fact AND
2) that she is entitled to judgment as a matter of law
Court views the evidence in the light most favorable to the nonmoving party.

Court has the discretion.
Any party can move for this no later than 30 days of closing of discovery

Question 16

Conferences and Meetings

Answer 16

1) Rule 26(f) conference - at least 21 days before scheduling conference, parties must “meet and confer” to discuss production of discovery, settlement. Must present to the court a detailed discovery plan
2) Scheduling Order - the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery. Roadmap for litigation up to trial.
3) Pretrial Conferences - the court may hold these to process the case and foster settlement. Roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc.

Question 17

Right to Jury Trial in Federal Courts

Answer 17

Seventh Amendment preserves the right to jury trial in “civil actions at law” but not in suits of equity. If a case involves both a claim for damages (legal relief) and an injunction (equitable relief), the jury decides the facts underlying the damages claim but not the equity claim.

Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issues.

Seventh Amendment does NOT apply in state court

Question 18

Selection and Composition of the Jury

Answer 18

In the jury selection process (voir dire), each side can ask the court to strike potential jurors. Two kinds:

1) For cause - e.g. potential juror will not be impartial. No limit to for cause challenges
2) Peremptory - don’t need to state a reason but MUST be used in a race and gender-neutral manner. Only three peremptory challenges per side.

Question 19

How many jurors are on a civil jury in federal court?

Answer 19

Minimum 6, maximum 12

If six jurors are empaneled, all six need to return the verdict.

Unless the parties agree otherwise, unanimous jury vote is required for a verdict.

Question 20

Jury Instructions

Answer 20

Jury decides facts, but is instructed on the law by the judge.

At close of evidence, parties submit proposed jury instructions to the judge. Parties are allowed to make objections to the instructions and to the rejection of proposed instructions before final argument and jury instruction.

Question 21

Types of verdict

Answer 21

The judge determines what verdict form the jury will use:

1) General - Jury determines who wins and, if P wins, what the relief is. Clerk of court enters the judgment
2) Special - Jury answers specific questions about the facts in dispute. Judge then reaches legal conclusions based on the facts found and clerk enters it
3) General verdict with special interrogatories - jury gives a general verdict but must also answer specific questions submitted to it. Judge approves judgment and clerk enters it

Question 22

What if the verdict shows that the jury did not follow instructions or it is internally inconsistent?

Answer 22

No judgment is entered. The court can then instruct the jury to reconsider its answers or, if reconsideration won’t fix the problems, it can order a new trial.

Question 23

Juror Misconduct

Answer 23

The court can set aside the verdict and order a new trial:

1) verdict may be “impeached” based on external matters (if jurors were bribed, based their verdict on investigation outside of court) a new trial can be heard.
2) BUT a juror cannot testify about things occurring or statements made during jury deliberations except to show “extraneous prejudicial information” or “outside influence”
3) Verdict will not be set aside if the misconduct was harmless

Question 24

Nonjury (“Bench”) Trial

Answer 24

Judge must record:

1) her “findings of fact”
2) her conclusions of law (separate from findings of fact)
3) Judgment

Question 25

Motions at and after trial

Answer 25

1) Motion for judgment as a matter of law (JMOL)
2) Renewed motion for judgment as a matter of law (RJMOL)
3) Motion for a new trial
4) Remittitur and additur
5) Motion for relief from order or judgment

Question 26

Motion for judgment as a matter of law

Answer 26

If the judge grants JMOL, the case will not go to the jury, the judge simply rules for a side. Based on evidence presented at trial. Why?
Because reasonable people could not disagree with the result.
Party can move for JMOL after the other side has been heard at trial

Question 27

Renewed motion for judgment as a matter of law

Answer 27

Same as JMOL, but it comes after trial. A party moves for RJMOL within 28 days after entry of judgment

Absolute prerequisite to bringing RJMOL: Party must have moved for JMOL at a proper time at trial

Question 28

Motion for a new trial

Answer 28

Judgment is entered, but some error at trial requires that there be a new trial. Can be based on any (non-harmless) error that makes the judge think there should be a do-over. Party moves within 28 days after judgment

Less drastic than RJMOL.

Question 29

Remittitur and additur

Answer 29

One ground for a new trial is that the jury’s damages figure is excessive or inadequate. Standard: shocks the conscience. Instead of new trial, court might suggest:

1) remittitur: if P awarded so much money as to shock the conscience, P can either take a lesser amount or go through new trial.
2) additur: P awarded so little money that it shocks the conscience. ONLY in STATE court does D have a choice: pay a greater amount or go through new trial. Additur is unconstitutional in federal court (violates 7th Amendment)

Question 30

Motion for Relief from Order or Judgment

Answer 30

Party asks the court to set aside an order or judgment entered. Exs.:

1) clerical error
2) mistake, excusable neglect
3) new evidence that could not have been discovered with due diligence for a new trial motion
4) judgment is void