Conferences, Pretrial Orders, and Trial Flashcards
Pretrial conferences - generally
The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement. Moreover, this conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties. A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys’ fees) by other parties unless the court finds that circumstances make such an award unjust.
Seventh Amendment
The Seventh Amendment preserves the right to a jury trial for both the plaintiff and defendant for civil actions in federal court of facts in all suits of common law where the amount in controversy exceeds $20. The determination is historical and turns initially on whether the claim or relief was available at law or equity in 1791. However, the Supreme Court has demonstrated a clear preference for jury trials in doubtful cases and has held that, if damages are claimed as part of an action seeking an injunction, the defendant cannot be denied a jury on the damages issues on the ground that they are incidental to the equitable relief. As such, when a case presents both legal and equitable claims, the right to a jury is preserved for all legal claims, but not for equitable claims. Instead, the legal claim should be tried first to the jury, and the equitable claim will go to the court (the jury’s finding of fact on issues will bind the court in the equitable claims).
Interlocutory orders
Interlocutory orders are the rulings that trial judges make during the course of pretrial proceedings and trials that do not completely resolve the case. Therefore, they are not final. As a result, interlocutory orders are not typically immediately reviewable until a final order is made, unless they meet one of the exceptions permitting an appeal as of right (i.e., orders granting injunctions; orders appointing a receiver; orders in admiralty cases finding liability but leaving damages to be assessed later; patent infringement orders where only an accounting is ordered; and orders affecting or changing possession of property). The Interlocutory Appeals Act also may permit a review of an interlocutory order, but it is discretionary, and may be available only when (i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is a substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) the court of appeals then agrees to allow the appeal. A party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
Burdens of proof at trial
The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose. The burden of persuasion does not shift from party to party during the course of a trial.
Burdens of going forward with the evidence at trial
The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant.
Judge calling witness to stand for questioning
The judge may call and examine the witness, but the parties are entitled to cross-examine the witness. A court is entitled to examine any witness called by any party, and may also call a witness on its own or at a party’s request.
