Final Outline

Question 1

What is joinder?

Answer 1

Party asserting a claim, counterclaim, crossclaim, or third-party claim may join as many claims as it has against an opposing party

Question 2

What is an impleader?

Answer 2

A defending party, may, as a third-party plaintiff, serve a summons and complaint on a non-party who is or may be liable to it for all or part of the claim against it

Question 3

What is intervention?

Answer 3

On a timely motion, the court must permit anyone to intervene who, has a legitimate interest in the present matter

Question 4

What is interpleader?

Answer 4

Enables a party who might be exposed to multiple claims to money or property under the party’s control to settle the controversy in a single proceeding; needs minimal diversity with amount in controversy over $500

Question 5

What are crossclaims?

Answer 5

An offensive claim against a co-party

Question 6

What are counterclaims?

Answer 6

An offensive claim against an opposing party

Question 7

What is a compulsory counterclaim?

Answer 7

A claim must be brought if they arise from the same transaction or occurrence as the original claim

Question 8

What is a permissive counterclaim?

Answer 8

A claim may be brought if it does not arise form the same transaction or occurrence

Question 9

What is aggregate litigation through consolidation?

Answer 9

Being able to join lawsuits together for certain hearings where they occurred from the same occurrence

Question 10

What is a class action?

Answer 10

A class action allows a named plaintiff to litigate claims and defenses of similarly situated persons in a single lawsuit, and the resulting judgment binds all of the “unnamed” parties who are members of the class

Question 11

What are the four prerequisites to class actions?

Answer 11

A. Numerosity: class is so numerous that general joinder is impractical
B. Commonality: same question of law and fact
C. Typicality: not identical but related or similar; claims are typical to entire class
D. Adequate Representation: representatives need to fairly and adequately represent the entire class

Question 12

What are the types of class actions?

Answer 12

1. Prejudice
2. Injunctive/Declaratory Relief
3. Damages
4. Hybrid

Question 13

What is the prejudice class action?

Answer 13

Prevents prejudice
a. To plaintiffs (will it be a risk of inconsistent judgments if plaintiffs are not allowed); or
b. Defendants (if defendant is forced to defend, will it prejudice them?)

Generally does not require notice at the certification state nor provide opt-out rights

Question 14

What is injunctive/declaratory relief class action?

Answer 14

Seeks injunctive or declaratory relief to change defendant’s conduct or stop them from doing something
A. Defendant’s conduct need only apply generally to the class; and
B. Does not generally require notice at the certification stage nor provides opt-out rights to absentees

Question 15

What is a damages class action?

Answer 15

Seeks damages for injuries by the same defendant
a. Requires class members to share questions of law and fact that predominates over any questions affecting only individual members;
b. Must show this is a superior mode of adjudication; and
c. Requires notice and opt-out rights in all cases

Question 16

What is a hybrid class action?

Answer 16

Where a class is seeking both monetary damages for past actions and an injunction to stop future harms

Question 17

What is a certification in class actions?

Answer 17

Certification is when the court either grants or denys the class

Class certification decisions are allowed immediate interlocutory appeals

Question 18

What diversity is needed in class actions?

Answer 18

Minimal diversity and only on the named parties

Question 19

What is the Class Action Fairness Act (CAFA)?

Answer 19

A class action may be brought under CAFA when:
1. 100 people or more
2. Over $5 million in damages
3. Minimal diversity

Question 20

What is discovery?

Answer 20

The disclosure of certain types of information without a parties request or court order; and make discoverable only information relevant to the claims and defenses in the lawsuit–not the subject matter–when disclosure is proportional to the needs of the case

Question 21

What are depositions?

FRCP §30

Answer 21

Oral deposition of parties by counsel under oath
a. Available to parties and non-parties
b. Non-parties should be subpoenaed to make them actually show up
c. Limited to only 10
d. Limited to 1 day for 7 hours
e. There is also depositions by written questions under oath (FRCP § 31)

Question 22

What are interrogatories?

FRCP § 33

Answer 22

This allows one party to send another party a maximum of 25 written questions to be answered under oath
a. Available to parties only

Question 23

What are requests to produce?

FRCP §34

Answer 23

This rule allows a party to request the production of documents, electronically stored information, and tangible things in their possession or control that is relevant to the suit
a. Available to parties and non-parties

Question 24

What are physical and mental examinations?

FRCP §35

Answer 24

A party may request a party to undergo a mental and physical examination
a. Available to parties only
b. Requires a court order
c. Must be for a good cause and the matter is actually at issue

Question 25

What are requests for admissions?

FRCP §36

Answer 25

A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters relating to (a) facts, the application of law, or opinions about either; and (b) the genuineness of any described documents
a. This is self-executing, meaning that if the requested party does not answer, the question is deemed admitted, and fact will be stipulated as fact at trial
b. Available to parties only

Question 26

What is the scope of discovery?

FRCP § 26

Answer 26

A. Non-privileged: Parties may obtain discovery regarding any non-privileged matter;
a. Make something more or less probable)
B. Relevant: that is relevant of the issues at the stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources; and
C. Proportional: The importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit
a. It is not an undue burden for a party to produce

Question 27

What is the duty to confer and plan discovery?

FRCP § 26(f)

Answer 27

Discovery planning conference where parties will meet and discuss how discovery will move forward

Question 28

What are automatic disclosures?

FRCP §26(a)

Answer 28

Every single party must disclose information to all other parties

Question 29

What are materials presented in anticipation of trial?

FRCP § 26(b)(3)

Answer 29

Attorney work product, expert information, or consultant information in anticipation of a lawsuit is privileged
A. This is protected even if a lawsuit does not exist yet
B. Becomes discoverable if there is good cause and there is no other way the party can obtain it

Question 30

What is attorney-client privilege?

Answer 30

All courts recognize attorney-client privilege which is discussions between attorney and client or attorney’s staff and client

Question 31

What does attorney-client privilege require?

Answer 31

a. Must be communication between actual client and attorney or attorney’s staff
b. Discussion be either about legal issue or seeking advice
c. No other third party can hear the matter
d. Privilege must be claimed and not waived

Question 32

When is expert information discoverable?

Answer 32

If an expert may be used at trial, then the information is discoverable including any reports prior to testimony but if hired and concluded that they will not be used, the information is not discoverable

Question 33

What is judicial supervision of discovery?

Answer 33

Judge sets up a scheduling order to ratify discovery schedule
A. The judge will only get involved if there is a dispute or if someone is seeking a court order for physical and mental examinations
B. Attorneys have to meet and confer to see if they can work things out prior to asking the court to step in to help the dispute

Question 34

What is a summary judgment?

FRCP § 56

Answer 34

Asserting to the court that there is no genuine issue to any material fact (The other party can’t win and judgment must be given to me)

Question 35

What is a voluntary dismissal?

Answer 35

Plaintiff moving to dismiss the action themselves without prejudice

Question 36

What is an involuntary dismissal?

Answer 36

The court has concluded that the plaintiff is not prosecuting the matter appropriately and the court orders the case to be dismissed with prejudice

Dismissal for failure to prosecute

Question 37

What is a default judgment?

FRCP §55

Answer 37

The defendant does not defend at all by neither appearing nor answering so the court will input judgment against the defendant

Question 38

What is the Seventh Amendment?

Answer 38

This preserves the right to a civil trial by jury
A. This protects matters which are brought in law with an amount in controversy of $20 or more
B. The party must properly demand a jury

Question 39

What are suits in equity?

Answer 39

Suits in equity have no right to a jury trial

i.e., suits requesting injunctions

Question 40

What are suits in law?

Answer 40

Suits in law have a right to a jury trial, even in hybrid cases

If there is a conflict between legal and equitable principles for a given case, the jury will hear the whole case as long as the issue at law is predominate. If the issues at law is minor, the judge will split the case and hear the issue at equity and the jury will hear the issue at law

Question 41

What are questions of law?

Answer 41

Judge handles this as they are an expert in law

Question 42

Who hears questions of fact?

Answer 42

Jury handles this; they are the fact finder and answer all questions in fact

Question 43

What is a demand and waiver of trial by jury?

FRCP §§ 38 & 39

Answer 43

There is a requirement to demand a jury trial and if not timely demanded, it is waived, even if there is a seventh amendment right

A party must demand a jury trial within 14 days

Question 44

What is the selection and composition of jury?

Answer 44

The Voir Dire process is where juries are assembled and questioned. Prospective jurors of 6 to 12 people are put together to decide on the case

Question 45

What are strikes for cause?

Answer 45

Strikes a juror for a reason; can be used an unlimited amount of times

Question 46

What are peremptory strikes?

Answer 46

B. Strikes for Peremptory: Do not need to have a reason; they can be for any reason or no reason at all but cannot be discriminatory or on a basis of race or gender
a. Limited to 3 federally

Question 47

What is a motion for judgment as a matter of law?

FRCP §50

Answer 47

During trial, at the close of party’s case, either party may bring for judgment as a matter of law where the party is asking a judge to decide the case right now because the other party cannot meet their cause of action or defenses
A. This must be brought first in order to bring this motion after verdict
B. This is brought before the issue goes to the jury

Question 48

What is a Motion or judgment as a Matter of Law After the Verdict?

Answer 48

This is a renewed motion for judgment as a matter of law where the case has already reached the jury and a verdict has been given
A. This is where the party claims the jury got it wrong
B. This motion must be brought before in order to bring this renewed motion

Question 49

What is motion for a new trial?

FRCP §59 and 61

Answer 49

One can request a motion for a new trial in cases where the previous trial is complete
A. Parties are seeking this claiming that there was an error, new evidence, misconduct or irregularity that requires the court to bring it all over again

Question 50

What is a power to set aside?

FRCP § 60

Answer 50

A judge has the power to set aside a verdict by the jury if there is some sort of good cause or reason to provide relief from a judgment
A. This can occur by evidence learned later, evidence obtained by fraud

Question 51

What is the principle of finality?

Answer 51

There must be a final judgment before a case can be heard in an appellate court

Question 52

What is interlocutory appeals?

Answer 52

Appeals without finality by court order where there is an injunction, temporary restraining order, or anything that affects a party’s right
a. If trial court has made an order collateral to the main issue, collateral order has a finality, in which the collateral order may be immediately appealable (i.e., the plaintiff is ordered to pay bond before the case goes forward; this collateral order pertaining to the bond Is final and may be immediately appealable because the court order is separate from the ultimate adjudication of the primary case

Question 53

What is discretionary appeals and appeals of orders regarding injunctions?

Answer 53

In order for appellate review, an error needs to occur in which the error can affect the final judgment; this can not be a harmless error

Question 54

What is the two step process for discretionary appeals?

Answer 54

A. The district court judge can certify and issue for immediate appeal
B. Then the case goes to the Court of Appeals, and in their discretion, they decide whether to take the case or not

Question 55

Under the United States Supreme Court, what is a discretionary review?

Answer 55

Supreme Court is asked to take this case and the Court will either take it or deny it

Question 56

Under the Supreme Court, what is a review as a right?

Answer 56

Involves usually the goverment or two states against each other; occurs very rarely

Question 57

What is res judicata?

Answer 57

Entire lawsuit is precluded from being brought a second time
A. A defense can be brought up to claim that the issue is res judicata
B. This must be brought early within the matter, not the day before trial

Question 58

What are the elements for res judicata?

Answer 58

i. Valid Final Judgment
ii. On the merits (i.e., default judgments, final decisions)
iii. Same case or controversy; same set of facts
iv. Same parties or their privies
v. Was actually litigated or could have been litigated

If all elements are met, the plaintiff cannot bring a lawsuit a second time

“VOSS Water”

Question 59

What is collateral estoppel?

Answer 59

Bars relitigating against a specific issue even if it does not involve the same parties

Question 60

What are the elements for collateral estoppel?

Answer 60

i. Involves same issue (meaning the actual factual or legal issue in question)
ii. Actually litigated (parties must have discussed the issue in trial)
iii. Necessarily decided (Decision was on the issue; decision was necessary for the judgment on that issue; whatever was discussed and litigated

Question 61

If all the elements are met for collateral estoppel, when may it be used?

Answer 61

Defensively (even with new defendant)
1. Claims that the issue was decided against the plaintiff and that issue was already decided

Offensively
1. Plaintiff uses it against a new party claiming that this issue was previously decided against a defendant and plaintiff will use this again against another defendant
2. Can only be used against a party that was a party or its privy in the previous litigation
a. This is because they already had a chance to defend against it; had their day in court essentially

Question 62

What is intersystem preclusion?

Answer 62

Federal courts will honor judgments from state courts and state courts will honor judgments from federal courts

Question 63

What are the available Alternative Dispute Resolutions?

Answer 63

A. Negotiation
B. Mediation
C. Arbitration
D. Private Judging
E. Neutral Fact Finding and Ombudspersons
F. Early Neutral Evaluation (ENE)
G. Mini-trials
H. Summary Jury Trials