Conferences, Trial, Post-Trial Motions Flashcards
1
Q
Judicial Management — Conferences
A
- Under Rule 16 (in conjunction with Rule 26), party representatives must Meet & Confer with each other and/or the court at various times throughout the proceeding
- Most of these conferences are for discovery purposes
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(A) Mandatory Meet & Confer — 26(f) Conference
Timing
- Parties must meet at least 21 days before the scheduling conference
- unless court order says otherwise
At the Conference, the parties:
(1) Discuss:
- claims, defenses, and settlement
- production of required initial disclosures, and preservation of discoverable information
(2) Develop a Detailed Plan for Discovery
- Plan Must Include:
- Views & Proposals on Timing
- Issues about Discovery of ESI
- how it will be produced
- any problems retrieving it (e.g., deleted files)
- Present To Court
- Must present the discovery plan to court within 14 days after the Meet & Confer
Note
- Assuming no court order or stipulation provides otherwise, a party can’t send discovery requests to another party until after the Rule 26(f) Conference.
- e.g., Depos, RFPs, RFAs, Interrogatories
- Exception — Requests for Production
- Can serve RFP earlier — more than 21 days after Service of Process
- These requests are treated as if served at the Rule 26(f) Conference
- Can serve RFP earlier — more than 21 days after Service of Process
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(B) Scheduling Conference
- Conference at or after which judge issues Scheduling Order
Scheduling Order
- Unless local rule or court order says otherwise, the court enters an order which sets deadlines for
- filings of pleadings, joinder, amendments, motions, and completion of discovery, etc.
- This is a roadmap for how the litigation proceeds up to trial.
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(C) Pretrial Conferences
- Conference before the court — held as needed to process / move case forward and encourage settlement
Final Pretrial Conference
- Determines / finalizes
- Issues to be resolved at trial
- Evidence to be proffered at trial
-
Pretrial Conference Order
- 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.
- NO SURPRISES — Issues & Evidence not included in the order are generally excluded at trial
- e.g., witness won’t be able to testify — unless you can amend the pretrial conference order, which is difficult to do
2
Q
Mandatory Meet & Confer
26(f) Conference
A
Timing
- Parties must meet at least 21 days before the scheduling conference
- unless court order says otherwise
At the Conference, the parties:
(1) Discuss:
- claims, defenses, and settlement
- production of required initial disclosures, and preservation of discoverable information
(2) Develop a Detailed Plan for Discovery
- Plan Must Include:
- Views & Proposals on Timing
- Issues about Discovery of ESI
- how it will be produced
- any problems retrieving it (e.g., deleted files)
- Present To Court
- Must present the discovery plan to court within 14 days after the Meet & Confer
Note
- Assuming no court order or stipulation provides otherwise, a party can’t send discovery requests to another party until after the Rule 26(f) Conference.
- e.g., Depos, RFPs, RFAs, Interrogatories
- Exception — Requests for Production
- Can serve RFP earlier — more than 21 days after Service of Process
- These requests are treated as if served at the Rule 26(f) Conference
- Can serve RFP earlier — more than 21 days after Service of Process
3
Q
Scheduling Conference
A
- Conference at or after which judge issues Scheduling Order
Scheduling Order
- Unless local rule or court order says otherwise, the court enters an order which sets deadlines for
- filings of pleadings, joinder, amendments, motions, and completion of discovery, etc.
- This is a roadmap for how the litigation proceeds up to trial
4
Q
Pretrial Conference
A
- Conference before the court — held as needed to process / move case forward and encourage settlement
Final Pretrial Conference
- Determines / finalizes
- Issues to be resolved at trial
- Evidence to be proffered at trial
-
Pretrial Conference Order
- 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.
- NO SURPRISES — Issues & Evidence not included in the order are generally excluded at trial
- e.g., witness won’t be able to testify — unless you can amend the pretrial conference order, which is difficult to do
5
Q
Fact Finding
Judge vs Jury
A
- 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”)
6
Q
Motion In Limine
A
Pretrial motion to decide whether the jury should hear certain evidence (include or exclude)
7
Q
Right to Jury Trial
in Federal Court
A
7A provides Right to Jury in
- “Civil Actions at Law”
- but NOT in Suits at Equity
Not incorporated against states
Mixed Cases Involving Law & Equity Claims
- Basic Rule
- First — Jury will decide all underlying facts on claim at law
- Remaining Facts — Judge will decide facts for equity claims
- Facts Underlying Both Law & Equity Claims
- If a fact (e.g., whether D trespassed) underlies both a claim for damages and a claim for an injunction, the jury will decide it.
Timing & Procedure
- (a) must Demand the jury in writing (not oral)
- (b) no later than 14 days after service of the Last Pleading addressing a jury triable issue
- last pleading addressing a jury issue is usually the answer
- there are only two pleadings — complaint & answer
Waiver — If you don’t do this, you waive the right to a jury
- All or nothing
- Ex — P forgets to include demand for a jury in his complaint. Before D answers, he files an amended complaint adding a new claim and demanding a jury. P get a jury even on the original claim – because he has not yet been served with the answer (and even then, he would get 14 more days)
Waiver — In Removal Cases
- (a) State Law Authorizes
- If prior to removal, party made an express demand for jury in accordance with state law — they don’t need to make a demand after removal
- If state law applicable in the court from which the case is removed doesn’t require parties to make an express demand — then they don’t need to make a demand after removal — unless the court directs they do so
- (b) If it Doesn’t
- Moving Party — must file demand within 14 days after the notice of removal is filed
- Non-Moving Party — must file demand within 14 days after service on him of the notice of filing for removal
8
Q
Right to Jury Trial
in Federal Court
Timing & Procedure
A
- (a) must Demand the jury in writing (not oral)
- (b) no later than 14 days after service of the Last Pleading addressing a jury triable issue
- last pleading addressing a jury issue is usually the answer
- there are only two pleadings — complaint & answer
Waiver — If you don’t do this, you waive the right to a jury
- All or nothing
- Ex — P forgets to include demand for a jury in his complaint. Before D answers, he files an amended complaint adding a new claim and demanding a jury. P get a jury even on the original claim – because he has not yet been served with the answer (and even then, he would get 14 more days)
Waiver — In Removal Cases
- (a) State Law Authorizes
- If prior to removal, party made an express demand for jury in accordance with state law — they don’t need to make a demand after removal
- If state law applicable in the court from which the case is removed doesn’t require parties to make an express demand — then they don’t need to make a demand after removal — unless the court directs they do so
- (b) If it Doesn’t
- Moving Party — must file demand within 14 days after the notice of removal is filed
- Non-Moving Party — must file demand within 14 days after service on him of the notice of filing for removal
__________________________________________
7A provides Right to Jury in
- “Civil Actions at Law”
- but NOT in Suits at Equity
Not incorporated against states
Mixed Cases Involving Law & Equity Claims
- Basic Rule
- First — Jury will decide all underlying facts on claim at law
- Remaining Facts — Judge will decide facts for equity claims
- Facts Underlying Both Law & Equity Claims
- If a fact (e.g., whether D trespassed) underlies both a claim for damages and a claim for an injunction, the jury will decide it.
9
Q
Right to Trial
in Diversity Cases
A
Right to Jury Trial (if no right in State court)
- Fed Court must permit a jury trial in any diversity “suit at CL” even though the state court would deny a jury (7A prevails over state law in Erie situations)
State Law Direct Assignment of Fact Issue to Court
- Fed Court will generally follow the Fed Rules of submitting issues of fact to the jury
- even though the State law assigns the issue to the court
State Law Requires Fact to be Determined by Jury
- If the State law requires submission of a fact issue to the jury
- Fed Court may nonetheless direct a verdict under the usual standards or otherwise follow a Fed Rule that calls for the court to be the trier of fact.
state law is disregarded in determining the sufficiency of the evidence to create a jury issue; i.e., the directed verdict standards are always federal.
10
Q
Jury Selection
A
Voir Dire — Jury selection process occurring at beginning of trial
Each party may strike (remove) potential jurors, either
- (i) For Cause, or
- (ii) through Peremptory Challenges
(i) For-Cause Strikes
- Potential juror will not be impartial
- Bias
- Prejudice
- Relation to Party
- Two Types of Bias
- Actual Bias — when a juror indicates he would use predetermined beliefs or principles instead of the facts presented to determine a case.
- Implied Bias — when it is very likely an average person in the same position as the juror would be partial to one of the parties. Even if the juror states he can still be fair and impartial, he must be excused from the case.
- Unlimited
- Each side has unlimited for-cause strikes
(ii) Peremptory Strikes / Challenges
- Can only be used for any Race & Gender-Neutral purpose
- EP — jury selection = state action
- Historically, one did not need to state a reason — just dismiss the potential juror
- Number
- Each SIDE has three to use during voir dire — not per party (all Ps / Ds)
- Court can potentially provide side with more
11
Q
How Many
Peremptory Strikes / Challenges
A
-
Each SIDE has 3 to use during voir dire
- not per party (all Ps / Ds)
- Court can potentially provide side with more
_________________________________________
Voir Dire — Jury selection process occurring at beginning of trial
Each party may strike (remove) potential jurors, either
- (i) For Cause, or
- (ii) through Peremptory Challenges
(i) For-Cause Strikes
- Potential juror will not be impartial
- Bias
- Prejudice
- Relation to Party
- Two Types of Bias
- Actual Bias — when a juror indicates he would use predetermined beliefs or principles instead of the facts presented to determine a case.
- Implied Bias — when it is very likely an average person in the same position as the juror would be partial to one of the parties. Even if the juror states he can still be fair and impartial, he must be excused from the case.
- Unlimited
- Each side has unlimited for-cause strikes
(ii) Peremptory Strikes / Challenges
- Can only be used for any Race & Gender-Neutral purpose
- EP — jury selection = state action
- Historically, one did not need to state a reason — just dismiss the potential juror
12
Q
Jury Composition
(number etc)
A
Number in Civil Trials in Fed Court
- Minimum — 6
- must begin with
- Maximum — 12
No Alternates
- No alternate jurors in federal court
Generally, all jurors participate in the verdict
- Unless excused for good cause
- But remember — must have a minimum of 6 to return a verdict
- Ex — 6 jurors are empaneled and during trial one is excused for good cause because of health problems.
- Can the remaining 5 return a verdict?
- No — Unless the parties agree otherwise
- Can the remaining 5 return a verdict?
Jury Vote Required for a Verdict
- Unanimous
- Unless the parties agree otherwise
13
Q
Jury Vote Required for a Verdict
A
-
Unanimous (of 6 min)
- Unless the parties agree otherwise
Number in Civil Trials in Fed Court
- Minimum — 6
- must begin with
- Maximum — 12
No Alternates
- No alternate jurors in federal court
Generally, all jurors participate in the verdict
- Unless excused for good cause
- But remember — must have a minimum of 6 to return a verdict
- Ex — 6 jurors are empaneled and during trial one is excused for good cause because of health problems.
- Can the remaining 5 return a verdict?
- No — Unless the parties agree otherwise
- Can the remaining 5 return a verdict?
14
Q
Jury Instructions
A
- Jury decides facts
- but is instructed on the law by the judge
Timing & Procedure
Requested Jury Instructions
- Parties may file requested jury instructions to be given to the jury during deliberations
- Usually given to jury at close of evidence — but can be sooner at the court’s direction
Proposed Instructions
- Before final argument and instructions — the court informs the parties of the
- (1) Instructions it Will Give and
- (2) Proposed Instructions it Rejected
Objections to Proposed Instructions
(i) Right to Object
- Before final arguments and before instructions are delivered to the jury — Parties must
- (1) have an opportunity to object on the record
- Must be allowed to make specific objections as to the
- (a) proposed instructions
- (b) rejection of requested instructions
- (2) outside the presence of the jury
(ii) Waiver of Objection
- Party must timely object to a proposed instruction — before jury is “charged” (given the instructions)
- If objections are not made before the jury is charged, the party cannot raise a problem with jury instructions in a post-trial motion or on appeal
- Exception — even if a party did not object timely, a court can consider a jury instruction if it contained plain error
- C.f. If adequately preserved, the instructions are reviewed using an abuse of discretion standard
- Exception — even if a party did not object timely, a court can consider a jury instruction if it contained plain error
15
Q
Objection to
Proposed Jury Instructions
A
Objections to Proposed Instructions
(i) Right to Object
- Before final arguments and before instructions are delivered to the jury — Parties must
- (1) have an opportunity to object on the record
- Must be allowed to make specific objections as to the
- (a) proposed instructions
- (b) rejection of requested instructions
- (2) outside the presence of the jury
(ii) Waiver of Objection
- Party must timely object to a proposed instruction — before jury is “charged” (given the instructions)
- If objections are not made before the jury is charged, the party cannot raise a problem with jury instructions in a post-trial motion or on appeal
- Exception — even if a party did not object timely, a court can consider a jury instruction if it contained plain error
- C.f. If adequately preserved, the instructions are reviewed using an abuse of discretion standard
- Exception — even if a party did not object timely, a court can consider a jury instruction if it contained plain error
- Jury decides facts
- but is instructed on the law by the judge
Timing & Procedure
Requested Jury Instructions
- Parties may file requested jury instructions to be given to the jury during deliberations
- Usually given to jury at close of evidence — but can be sooner at the court’s direction
Proposed Instructions
- Before final argument and instructions — the court informs the parties of the
- (1) Instructions it Will Give and
- (2) Proposed Instructions it Rejected
