Adjudicating the Dispute Flashcards
RIGHT TO JURY TRIAL
Who is entitled to a jury?
How is that right secured?
How is the jury selected?
What is the Size of the Jury?
Right to jury trial in Fed. Ct:7th Am. preserves it in actions at LAW, but not in suits at EQUITY
NOTE: 7th Am. does not apply in state courts.
IF case involves both law and equity → jury determines fact issues underlying law claim but not equity claim.
→If case involves both, the jury issues will be heard FIRST
MOTION IN LIMINE = pre-trial motion to determine if the jury shoulds hear certain evidence
HOW IS THE RIGHT TO A JURY TRIAL SECURED?
Must demand jury trial in writing no later than 14 DAYS after service of the last pleading raising a jury-triable issue – OTHERWISE the party has waived the right to a Jury
SELECTING A JURY:
- Each side has unlimited strikes of potential jurors for cause (e.g., bias, related to a litigant)
- Each side has 3 PEREMPTORY strikes,which MUST use in race/gender neutral way (this is state action)
JURY SIZE:
For a civil jury in Federal Court, the
MINIMUM = 6
MAXIMUM = 12
All jurors participate in the verdict unless excused for good cause
NOTE: must have at least 6 jurors participate in verdict unless the parties agree otherwise
NOTE: jury vote must be UNANIMOUS unless the parties agree otherwise
What is a motion for judgment as a matter of law (JMOL)?
JMOL = Exceptional order, the effect of which is to TAKE THE CASE AWAY FROM THE JURY.
Brought when the OTHER side has been heard: ∆ can move at the close of π’s evidence and again at the close of all evidence
π can move at the close of all evidence.
Standard for granting the motion= reasonable people could NOT disagree on the result
Ct. will view evidence IN THE LIGHT MOST FAVORABLE to the non-moving party.
What is arenewed motion for judgment as a matter of law (RJMOL)?
WHAT
- AFTER jury returns verdict the ct. enters it,
- losing party then makes renewed motion;
- if granted results in judgment for him - the losing perty originally (w/o a new trial)
WHEN
Losing party MUST move w/in 28 DAYS after entry of the judgment.
Standard= reasonable people would not disagree on the result (i.e. jury reached a conclusion reasonable people couldn’t have reached)
— Ct. views evidence favorably to nonmoving party
Prerequisite: Moving party MUST have made a motion for judgment as a matter of law at the close of all evidence – IF you did not you cannot enter a renewed judgment (it’s WAIVED) (Guaranteed BAR QUESTION)
MOTION FOR A NEW TRIAL
What is a motion for a new trial?
SITUATION
Judgment entered, but judge concludes that errors at trial require a new trial (A DO OVER)
WHEN
Must move w/in 28 DAYS after entry of the judgment.
EXAMPLES OF GROUNDS
1. Prejudicial (harmful) error at trial makes judgment unfair (wrong jury instruction, wrong evidentiary ruling)
- New evidence that could not have been discovered in time for trial
- Prejudicial misconduct of party or juror (e.g., juror made indpt investigation of accident scene)
- Judgment is against the weight of the evidence, showing serious error of judgment by the jury.
NOTE: granting new trial is less radical than RJMOL, since it results in starting over.
NOTE: A party that may have been entitled to RJMOL but which waived it by not moving for JMOL at trial may still move for a new trial
PRELIMINARY INJUNCTION
What is a preliminary injunction and why is it used?
Preliminary Injunction = Order that maintains status quo until trial
NEVER granted ex parte!
Burden on applicant to show:
- He is likely to suffer irreparable harm if not issued
- He is likely to win on the merits of underlying case
- The balance of hardships tilts to him (threat to applicant outweighs harm to other party)
- the injunction is in the public interest
There is NEVER a right to an injunction (ALWAYS discretionary)
Applicant must post a bond if injunction granted
Ct may consolidate hearing for preliminary injunction w/actual trial in underlying case
Preliminary injunction must state its terms in specificity to say what D can and cannot do, why it was needed
In reviewing/granted or denying application, Ct. must make specific findings of fact and separate conclusions of law
Appealing Order or Denial can be done immediately
TEMPORARY RESTRAINING ORDER (TRO)
What is a TRO, how is it issued and how long is it valid?
TRO = an order to maintain the status quo that is provided BEFORE getting a preliminary injunction.
Ex Partte = Whenever the court does something w/o giving notice to the other party
TRO allowed ex parte in limited circumstances if:
(i) Applicant files a paper under oath;
(ii) Paper clearly shows that the applicant will suffer IMMEDIATE and IRREPARABLE harm if he must wait for the other side to be heard
(iii) Applicants lawyer certifies in writing his efforts to give oral or written notice to D or D’s attorney.
BOND RQRD: Applicant must post a bond to cover other side’s costs and damages if TRO turns out to have been wrongful
TRO must state its terms in specificity to say what D can and cannot do, why the TRO was needed and irreparable damage that P was threatened to suffer w/o it
TRO must be served immediately upon D and D can move to dissolve or modify it
TIMING
TRO is effective for no more than 14 days (or lesser time if stated by the court). With good cause can be extended another 14 days. 28 day MAXIMUM on TRO
VOLUNTARY DISMISSAL
What is a voluntary dismissal and what are the limitations if any?
Voluntary Dismissal = P can make a motion for voluntary dismissal if P wants to withdraw the case.
WHEN: P can make the motion at any time BUT P has to file the notice of dismissal before the D serves an answer or before the D serves a motion for summary judgement
HOW: P files a notice of dismissal
Prejudice?: If P files a timely notice then the dismissal will be without prejudice and P can RE-FILE the case
NOTE! Can only get a voluntary dismissal w/o prejudice ONCE. So if P files for voluntary dismissal in the second case, P CANNOT refile the case a third time (That’s the effect of prejudice)
DEFAULT and DEFAULT JUDGEMENT
WHEN: D is in default and a default judgement will be issued if D DOES NOT:
(i) Respond to complaint in 21 days after being served w/process OR 60 days from mailing of waiver if D waived service
Default = A notation by the court clerk on the docket sheet of the case
HOW Default is obtained: Default IS NOT AUTOMATIC, P must MOVE for the default and demonstrate that D failed to respond in time – Necessary to cut off D’s ability to respond
IMPORTANT: Before default is entered, D CAN RESPOND by motion or answer (even if 21 days have passed)
HOW P recovers after a Default: A default judgement MUST be obtained
HOW Default Judgement is Obtained: The CLERK of the court can enter the default judgement if:
- D made NO RESPONSE AT ALL;
- The claim is for a sum CERTAIN in money;
- Claimant gives affidavit of sum owed; AND IF
- D is NOT a MINOR or INCOMPETENT
OTHERWISE, D MUST apply to the court for a default judgment
NOTICE TO D of DEFAULT HEARING? D is ONLY notified in the case that a default hearing takes place if D has appeared in the case
NOTE: P could still potentially recover more if the case actually goes to trial
MOTION to SET ASIDE: D could move to have the coourt set aside the Default or the Default Judgment by showing BOTH:
- Good cause; AND
- A viable defense to the merits of the case
FRCP 12(b)(6): MOTION TO SET ASIDE FOR FAILURE TO STATE A CLAIM
How does the court decide this type of motion?
The COURT:
1. Ignore P’s legal conclusions and ONLY looks at the P’s allegations of fact;
NOTE: The court DOES NOT look at evidence in deciding this motion
THEN
2. The court looks at whether P would win a judgment if all the allegations were true – i.e. “is there a PLAUSIBLE CLAIM”
IF NO – the motion will be granted of the court may allow P to amend
Motion for Judgement on the Pleadings
Motion for Judgement on the Pleadings = This is like a motion to set aside for failure to state a claim but it is called this when the motion if made AFTER D has answered
FRCP 56: MOTION FOR SUMMARY JUDGEMENT
NOTE: Know the Rule #!
How does the court decide this type of motion?
Motion for summary judgement = P has stated a claim so we are now in the litigation stream but we MAY not need a trial.
Summary judgment is used to avoid a trial when there are NOT disputes about facts. We have trials to resolve any factual disputes.
PARTY Moving for Summary Judgment Must Show:
- There is no genuine dispute of material fact; AND
- That she is entitled to judgment as a matter of law
Granting this motion is ALWAYS discretionary
CAN the court look at EVIDENCE? YES (and it usually does) – the court views the evidence in the light most favorable to the non moving party
HOW: How is evidence obtained? The parties proffer the evidence in the form of:
- Affidavits
- Declarations
- Deposition Testimony
- Interrogatory Answers
- – all can be considered evidence b/c sworn to under oath
NOTE: VERY RARE but a pleading can also be considered evidence IF VERIFIED – MADE UNDER OATH
BUT a pleading may be looked to and may be relevant b/c if D failed to deny any allegation made by P, then it may be treated as fact for summary judgment
Note: Evidence CANNOT be hearsay – must be firsthand knowledge
The court doesn’t inquire into credibility issues but if a videotape or other first-hand info discredits a witness, the court may ignore the evidence based on that witness
WHEN: A party can move for this no later than 30 DAYS FROM THE CLOSE OF DISCOVERY
PARTIAL SUMMARY JUDGEMENT OKAY? YES
RULE 26(f) CONFERENCE
What is a Rule 26(f) conference and when must it occur?
WHEN: Conference must occur at least 21 days before the scheduling conference
WHAT: Parties meet and confer – They discuss:
- Production of required initial disclosures
- Claims
- Defenses
- Settlement
- Preservation of discoverable info
RESULT: Parties must present a DETAILED DISCOVERY PLAN to the Ct. which includes:
- proposals on timing
- issues about discovery of ESI
- Etc
SCHEDULING ORDER
Scheduling Order = Order scheduling CUT OFFs for:
- joinder
- amendments
- motions
- completion of discovery
- etc
- THIS IS A ROADMAP of how the litigation will proceed up to trial
PRE TRIAL CONFERENCES
What = the ct. may hold pre trial conferences to process the case foster settlement
FINAL Pre Trial Conference = Issues to be tried are determined and evidence to be proffered at trial is determined
PURPOSE = NO SURPRISES AT TRIAL!
IMPORTANT DOCUMENT B/C it SUPERSEDES the pleadings
JURY TRIAL
What is the process for Jury Instructions?
First: The parties submit their proposed jury instructions t othe judge at the close of all evidence (or earlier if instructed by the ct)
Next: Before final argument and instructions the ct informs parties of what instructions will be given and its rejection of any proposed instructions
***IMPORTANT:
OBJECTIONS TO INSTRUCTIONS:
1. PARTIES MUST be allowed to object to instructions before the final arguments and instruction are given
2. If objections not made before the jury is charged the party CANNOT RAISE AN ISSUE OF JURY INSTRUCTION on appeal
—Must have timely objection to instructions to preserve the issue on appeal
ONE EXCEPTION: IF a party did not make a timely objection, the ct. may still look into an instruction if it contained PLAIN ERROR THAT VIOLATED SUBSTANTIVE RIGHTS
