Kaplan Pgs 64-74 Jury Trials and Motions Flashcards
How many jurors can a federal jury have?
6 to 12 and each must participate in the verdict
What are the three categories of challenges for cause to excuse a juror?
– General disqualification
– implied bias
– actual bias
What is involved in each of the three categories of challenges “for cause“ to excuse a juror?
– General disqualification: having a felony conviction or some other inherent disqualification
– implied bias: if the attorney believes a bias may exist [having a relationship with one of the parties]
– actual bias: the journal indicates in voir dire that he would use predetermined beliefs or principles to decide the case instead of facts
How many peremptory challenges does each party get in federal court?
Three
What are things that peremptory challenges may not be used for when excluding jurors?
Race, ethnicity, or gender
If the opposing party objects to your peremptory challenges, what is the only basis that can happen on?
If they argue that the exclusion was because of racial, ethnic, or gender discrimination
If the opposing party objects to your peremptory challenge, what do you have to do?
You must provide a non-discriminatory explanation for your strikes, or else rescind your strikes
Is it possible for a party to request specific jury instructions for the court to give?
Yes, a party can file and furnish every other party written requests for the jury instructions at once the court to give at the close of evidence
What must the court do with regard to its jury instructions before it issues the jury instructions?
It must inform the parties of the proposed instructions and give the parties an opportunity to object on the record and out of the hearing of the jury
If a party wants to oppose potential jury instructions, how is that done?
This must be done on the records stating distinctly the matter that has been objected to and the grounds for the objection
When do you need to make an objection to jury instructions?
On the record out of the jury is hearing before the instructions in arguments are delivered [or if you were not informed of the instruction before the opportunity to object, as long as you do it promptly after learning about the instruction that is OK]
What is the key with regard to objecting to jury instructions?
The objection has to be made before, and not after the jury begins its deliberations. Once the jury begins deliberating, the time to object has passed
How must any application to the court for an order be made?
By motion
How must motions be made?
They must be in writing and state with particularly the grounds for the request as well as the request for relief
What are the different grounds that a motion to dismiss can be made on?
– Lack of subject matter jurisdiction – lack of PJ – improper venue – insufficient process or service of process – failure to state a claim – failure to join a party
If you want to object to lack of PD, improper venue, or insufficient process or service of process, when do you have to make that motion?
In the defending party’s first response to the court, which is either a pre-answer motion to dismiss or an answer
If a defendant make the motion to dismiss and doesn’t object to Pj, venue, or SOP, what happens?
That defence is waived and cannot later be included in the answer
When can a motion to dismiss for failure to state a claim or failure to join the necessary party be made?
Any time before the trial ends
Can lack of subject matter jurisdiction be raised even on appeal?
Yes
What is rule 12b6?
Motion to dismiss for failure to state a claim upon which relief can be granted
What is the mean for a case to be dismissed “with prejudice“ or “without prejudice“?
– With prejudice: the case is dismissed permanently and cannot be brought back to the court
– without prejudice: the case is not dismissed forever and it can be tried again
What is necessary to bring a motion to dismiss for failure to state a claim upon which relief can be granted?
– The complete must fail to state a cognizable claim
– it must provide insufficient facts, or
– have an allegation that negates one or more elements of the cause of action
If a case is dismissed because of failure to state a claim upon which relief can be granted, does that happen with or without prejudice?
With prejudice
If you make a motion for a more definite statement, what does that mean and what is involved?
It means that the pleading is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects that you were complaining of in the details that you want. If the court orders a more definite statement to be made, the other person has 14 days to comply or else the court can strike the pleading
What kind of things can a court strike from a pleading?
An insufficient defence or any redundant, immaterial, impertinent, or scandalous matter.
The court can do this on its own or on a motion made by a party
In essence, what is a motion for summary judgment?
It is a motion that challenges a claim or a defence on the merits
Who can move for summary judgment, and what does it apply to?
Any party can move for this and it can apply to any individual issue or to the cause of action as a whole
What is the timing for moving for some reason judgement and for a response to that?
Dash a party can move for summary judgement anytime before 30 days after the close of discovery
– a party opposing this motion must file a response within 21 days after the motion is served or a responsive pleading is due, whichever is later
– a reply may be filed within 14 days after the response is served
What are the two ways that’s the moving party can make an argument for summary judgment?
- by pointing out holes in the opposing parties claims or defenses, or
- by adducing new evidence showing that the claim or defence cannot be true
If you are making a motion for judgement as a matter of law, what is the analysis for that?
The exact same analysis as for a summary judgement motion
What is a motion for summary judgement based on and what is a judgement as a matter of law based on?
– Summary judgment: based on evidence that a party MAY introduce at trial
– judgement as a matter of law: based on evidence that was ACTUALLY introduced at trial
When is a motion for judgement as a matter of law made?
Usually at the close of the nonmoving parties keys, but it can be made anytime after all of the nonmoving parties evidence has been submitted, but before the case is submitted to the jury
Why do most attorneys make a motion for judgement as a matter of law as a matter of course?
To preserve the right to renew the motion at the conclusion of the trial
What was the former name for a renewed motion for judgement as a matter of law?
Judgement notwithstanding the verdict
What is the timeframe to move for a renewed motion for judgement as a matter of law?
This must be done within 28 days after the entry of judgement
What is the analysis that you should do for a renewed motion for judgement as a matter of law?
The same analysis as for a regular judgement as a matter of law of motion
When a judge rules on a renewed motion for a judgement as a matter of law, what are the judge’s options?
Dash allow the judgement on the verdict to stand
– order a new trial
– direct the entry of judgement as a matter of law
What is the timeframe for a motion for new trial?
It must be filed within 28 days of the entry of judgement
A motion for a new trial is generally made as a form of alternative relief to what motion?
A renewed judgement as a matter of law of motion
When would a motion for a new trial be appropriate?
Dash if the judge has committed reversible error
– if the jury verdict was so excessive it shows that the jury misunderstood its duty or acted with extreme prejudice
– if evidence of jury misconduct exists
– if the verdict is against the clear weight of the evidence
Is a court free to correct clerical mistakes or mistakes that come from oversight or omissions and judgments, orders, or other parts of the record?
Yes, it can do so on its own motion or on the motion of a party.
If an appeal has been docketed with the appellate court and his pending, can the trial court correct a clerical mistake in a judgment, order, or other part of the record?
Only if it has the appellate court’s leave to do so
