Conferences, trial, judgment and post-trial motions

Question 1

what is the rule 26(f) conference?

contents of discovery plan

Answer 1

WHAT IT IS:
Unless the court order says otherwise, at least 21 days before the court’s scheduling order, the parties “meet and confer” to discuss production of required initial disclosures, claims, defenses, settl ment, and preservation of discoverable information.

They must present to the court a detailed discovery plan no later than 14 days after the Rule 26(f) conference.

CONTENTS
must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (for example, deleted files), etc.

Question 2

what is the scheduling order

Answer 2

An order setting cut-offs for joinder, amendment, motions, completion of discovery, etc. [Unless local rule or court order says otherwise]

This is a roadmap for how the litigation proceeds up to trial.

Question 3

what is the final pretrial conference

Answer 3

The final pretrial conference determines the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order, which supersedes the pleadings. This order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc., so that there are no surprises at trial.

Question 4

jury trial vs. bench trial

Answer 4

If we have a jury, it determines the facts and returns the “verdict.”

If we don’t have a jury, the judge determines the facts (in a “bench trial”).

Question 5

what is a motion in limine

Answer 5

pretrial motion outside of the presence of the jury to decide whether the jury should hear certain evidence.

Question 6

when do you have a right to a jury trial in federal court

Answer 6

RULE:
The Seventh Amendment preserves the right to jury in “civil actions at law,” but not in suits at equity.

WHEN YOU HAVE A RIGHT TO A JURY TRIAL in “civil actions at law”

(1) damages / normal “at law” actions ==
whole action is jury trial

(2) mixed suits of law and equity where different facts underlie each claim ==
at law factual claims tried by jury; equity factual claims tried by judge [jury issues tried first]

(3) mixed suits of law and equity where same facts underly both law and equity claims ==
jury will decide that fact

Question 7

does the 7th Amendment apply in state court?

Answer 7

NO. The Seventh Amendment doesn’t apply in state court, only federal civil cases.

Question 8

how to get a jury trial, procedurally?

Answer 8

party must demand jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue [usually the answer]

and must serve the demand on all the parties within that 14 days

failing to make the demand = waiver of right to a jury

Question 9

what is the jury selection process called and what happens generally

Answer 9

voir dire

each side may ask the judge to strike potential jurors

Question 10

what challenges are there for striking jurors

Answer 10

(1) for cause

– strike because potential juror will be impartial or some other reason relating to that jury prejudicing the party in some way
– unlimited

(2) peremptory

– challenges where party states no reason
— each side gets 3
– may be used only in a race and gender neutral manner b/c jury selection is a state action even in a civil action between private parties

Question 11

number of jurors in federal court in civil jury trial

Answer 11

minimum of 6 maximum of 12 unless parties agree otherwise

Question 12

participation of jurors in federal civil jury trial

Answer 12

all jurors participate in the verdict unless a juror is excused for good cause, and the verdict must be unanimous unless the parties agree otherwise.

Question 13

Six jurors are empaneled and during trial one is excused for good cause because of health problems. Can the remaining five return a verdict absent stipulation?

Answer 13

no need at least 6

Question 14

when does jury hear jury instructions

Answer 14

at the close of all the evidence

Question 15

who gives jury instructions

Answer 15

judge

but parties submit proposed jury instructions to the judge

Question 16

what are jury instructions

Answer 16

instructions on the law

Question 17

explain how jury instruction conferences are held and how the instructions are chosen / objected to

Answer 17

WHAT: The judge may hold an “off the record” conference with the parties to discuss proposed jury instructions.

HOW INSTRUCTIONS CHOSEN:
Before final argument and instruction, and on the record, the court informs the parties of :
(1) what instructions it will give
and
(2) what proposed jury instructions it rejected.

OBJECTIONS: The parties must be allowed to object on the record and out of the jury’s hearing. This is true even if the party objected during the “off the record” conference.

WAIVER: If objections are not made before the jury is “charged” (given the instructions), the objection is waived.

REVISIT: A court can revisit that jury instruction only for clear error that affected a party’s rights.

Question 18

who decides what verdict form the jury will use

Answer 18

judge

Question 19

what are the forms of verdicts

Answer 19

(1) general verdict
says who wins and, if plaintiff wins, what the relief is
—- court enters judgment

(2) special verdict
the jury answers, in writing, specific written questions about the facts in dispute, but it does not say who wins or loses
—– if the answers are consistent with each other and with the verdict, the judge approves the judgment and the clerk enters it

(3) general verdict with written questions
the jury not only gives a general verdict, but it also answers specific questions submitted to it. The questions ensure that the jury focused on the important issues.
—- if the answers are consistent with each other and with the verdict, the judge approves the judgment and the clerk enters it

Question 20

what happens in the case of inconsistency Between General Verdict and Written Questions

Answer 20

In a case involving general verdict with written question:

if answers are consistent with each other BUT INconsistent with the verdict, court may enter an appropriate judgment consistent with the answers.
(Or it can tell the jury to reconsider or order a new trial.)

BUT

If answers are INconsistent with each other and one or more is INconsistent with the general verdict, NO judgment may be entered.
(Again, the court may order the jury to reconsider or order a new trial.)

Question 21

what happens if jurors misbehave (bribe, didn’t base verdict on evidence, etc.)

Answer 21

SERIOUSLY HARMFUL CONDUCT BY JURORS: juror being bribed or basing verdict on their investigation of matters outside of court instead of the evidence at trial [EXTERNAL]

(1) verdict may be impeached based on such harmful external matters

(2) if verdict is impeached, court may order a new trial

(3) note that non-jurors may give first-hand evidence of such things

HARMLESS CONDUCT: juror chatted for a moment with a party about the weather rather than the case
(1) verdict will not be set aside

Question 22

how does a bench trial work re: delivering the verdict and judgement

Answer 22

The judge must record her “findings of fact” orally on the record or in writing, along with her conclusions of law (which are stated separately from her findings of fact).

The judgment is very short—just telling who wins and, if plaintiff won, the relief granted.

Question 23

list the motions that come after trial

Answer 23

(1) motion for judgment as a matter of law (JMOL) / motion for a directed verdict

(2) Renewed motion for judgment as a matter of law (RJMOL)

(3) motion for new trial

Question 24

what does JMOL do and when does it apply and what is the standard for granting it? also, whats the timing for moving for it?

Answer 24

(1) applies in jury trials

(2) when granted, the case will not go to jury, judge grants the motion and enters judgement based on evidence at trial

(3) standard: “reasonable people could could not disagree on the result” ; court views evidence in light most favorable to non-moving party
[ex: P fails to put on any evidence of one of the elements of her claim - reasonable people could not disagree]

(4) timing: A party can move for JMOL after the other side has been heard at trial on the issue. [Ex: once P finishes her case, D can move]

Question 25

what is a renewed motion for JMOL (RJMOL)

requirements

timing

Answer 25

WHAT IT IS: same as a JMOL, but it comes up after trial; if granted, court enters judgment for th party that lost the jury verdict

(2) standard: “reasonable people could could not disagree on the result;” court views evidence in light most favorable to non-moving party
[ex: after trial, D moves for RJMOL because P failed to put on any evidence for one of its elements]

(3) Timing: must be made within 28 days after entry of judgment

(4) prerequisites:

(a) party must have moved for JMOL at the proper time at trial, otherwise, waived

(b) RJMOL must be based on same grounds as the JMOL motion

Question 26

what is motion for a new trial

when does it come up

timing

when can it be granted

Answer 26

(1) what: motion to have a new trial/ do-over because of some error at trial

(2) comes up after judgment is entered for prior trial

(3) party must move within 28 days of the judgment

(4) new trial can be granted on any non-harmless error that makes judge think there should be a do-over:

Ex:
(a) erroneous jury instruction

(b) new evidence discovered that could not have been discovered before with due diligence

(c) misconduct was committed by a juror, party, lawyer etc.

(d) judgment is against weight of evidence [serious error of judgment]

(e) damages are inadequate or excessive

Question 27

if you meet standard for RJMOL but waived it by failing to motion for JMOL, what can you do?

Answer 27

move for new trial on the grounds that the verdict is against the weight of the evidence.

Question 28

Ordering a new trial is less drastic than ordering RJMOL. Why?

Answer 28

A new trial results in starting over, so the same party may still win. An RJMOL results in taking judgment away from one party and giving it to the other.

Question 29

what are remittitur and additur + standard

Answer 29

— given to avoid new trial when jury’s damages figure is excessive or inadequate

— standard: “whether the damages figure ‘shocks the conscience’”

REMITTITUR: used when the verdict gave P too much money

Judge gives P a choice:
(1) remit part of the damages award
or
(2) new trial

[**note that the court cannot simply lower the figure that was set by the jury. That would violate the Seventh Amendment. So the court must give the plaintiff the choice of accepting the lower amount or going to a new trial]

-

ADDITUR: used when verdict gave P too little in STATE COURT ONLY

Judge gives D choice:
(1) add to the damage award
or
(2) go through a new trial

Question 30

when is additur allowed

Answer 30

Additur may be allowed in state court but not federal court; it violates the Seventh Amendment. The Seventh Amendment applies only in federal court, so the states are free to recognize additur (not all states do so).

Question 31

what procedural devices terminate a case [method, circumstances, timing]

Answer 31

(1) pre-answer motion - 12b

CIRCUMSTANCES: defects in…
– SMJ
– PJ
– venue
– process
– service of process
– failure to state a claim
– failure to join needed party

TIMING:

SMJ:
any time, even on appeal [nonwaivable]

PJ, venue, process, service of process:
waived if not raised by FIRST Rule 12 motion or answer, whichever is first
[EXCEPTION: if D’s first response was an answer in which he did not raise one of these and forgot to raise affirmative defense, he may amend his answer to include these defenses and affirmative defenses]

failure to state a claim, failure to join indispensable party:
may be raised any time before trial or at trial
———————————————————————–
(2) voluntary dismissal by P - 41a

CIRCUMSTANCES: without prejudice once as a matter of right, if done again, with prejudice; possible by stipulation or court order

TIMING: if dismissed as a matter of right without prejudice, must be done before D files answer or motion for summary judgment

-

(3) involuntary dismissal - 41b

CIRCUMSTANCES: P fails to prosecute case or comply with FRCP or a court order

TIMING: any time

-

(4) motion for judgment on the pleadings - 12c

CIRCUMSTANCES: on the face of the pleadings, moving party is entitled to judgment, treated as motion for summary judgment if accompanied by outside matters

TIMING: after pleadings are closed but not so late as to delay trial

-

(5) summary judgment - 56

CIRCUMSTANCES: no genuine dispute of material fact and moving party is entitled to JMOL… moving party may support with pleadings, affidavits, discovery materials

TIMING: any time until 30 days after close of discovery [if premature, court may defer ruling on it] … unless local rule or court order say otherwise

-

(6) judgment on partial findings - 52

CIRCUMSTANCES: In a nonjury trial, the judge may enter a judgment as a matter of law if she makes dispositive partial findings on the claim.

TIMING: During bench trial, once the judge has heard sufficient evidence to make dispositive findings and all parties have been fully heard on the issue.

-

(7) motion for JMOL - 50a

CIRCUMSTANCES: Evidence viewed in light most favorable to motion’s opponent leads reasonable person to conclusion in favor of moving party.

TIMING: After opponent has presented case but before submission of case to jury.

-

(8) RJMOL - 50b

CIRCUMSTANCES: The verdict returned could
not have been reached by reasonable persons. Moving party must have previously sought judgment as a matter of law sometime during the trial.

TIMING: Within 28 days after entry of judgment.

Question 32

what is an offer of judgement and what happens if P rejects it

Answer 32

A defendant can submit formal offers to settle the case up to 14 days before trial.

The benefit is that the rule contains cost-shifting provisions that apply when a plaintiff rejects an offer to settle and doesn’t do as well at trial as the offer – P must pay D’s litigation costs incurred after offer was made

Ex:
Defendant offers to pay $50,000 to settle Plaintiff’s claim. Plaintiff can accept and judgment will be entered for that amount.

But suppose Plaintiff rejects it and the case goes to trial. Plaintiff wins a judgment that is not more favorable than the offer. Plaintiff is then liable to De- fendant for her litigation costs incurred after the offer was made.

Question 33

what is a motion for relief from order or judgment

grounds and timing for granting

Answer 33

Under certain circumstances, you may obtain relief from judgement.

-

[A] You may obtain relief from judgement from the following ANY TIME:

(1) clerical error
.
.
.
[B] You may obtain relief from judgment after a REASONABLE TIME, but NEVER after more than ONE YEAR

(1) mistake, excusable neglect [including viable defense]

(2) fraud, misrepresentation, or misconduct by opposing party

(3) newly discovered evidence that could not have been discovered with due diligence for a new trial motion [i.e. not cumulative evidence]; as long as newly discovered facts existed at time of trial
.
.
.
[C] You may obtain relief from judgment after a reasonable time, and there is no maximum time limit, for the following:

(1) judgment is void [no SMJ, for example]

Question 34

affirmative defenses

Answer 34

• accord and satisfaction;
• arbitration and award;
• assumption of risk;
• contributory negligence;
• duress;
• estoppel;
• failure of consideration;
• fraud;
• illegality;
• injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and
• waiver.

Question 35

when can a pretrial order be modified?

Answer 35

only will be modified to prevent manifest injustice

no timing requirement - trial can have already begin