Motion Practice & Trials

Question 1

adjudication without trial - FRCP 56 MSJ general rules:

• what it means
• when made
• what can court consider

Answer 1

No genuine issue of material fact and moving party entitled to judgment as a matter of law.

Made by any party in a civil action. Can file ANYTIME UNTIL 30 days after close of discovery FRCP 56(b). If a motion is premature, court may defer ruling.
»> i.e. you can even file a MSJ as your first response to the complaint!

court can consider evidence under oath - affidavits, declarations, depositions, interrogatories
»> **court will NOT consider the pleadings unless they are “verified” (i.e. made under oath)!
»> failure to deny an allegation in a pleading CAN be considered
»> so long as there is a genuine dispute of fact, court IS NOT assessing credibility at this stage

Can have motions for partial summary judgment

Question 2

adjudication without trial - FRCP 56 MSJ - what you need to establish in response to keep the case alive

Answer 2

A party asserting that a fact … is genuinely disputed must support the assertion by:

(a) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials, OR
(b) showing that the materials cited do not establish the absence … of a genuine dispute.

**evidence must meet the standards of evidence at trial

Question 3

how to demand a jury trial

Answer 3

FRCP 38 requires that a party who desires a jury trial must file a written demand with the court and serve it on ALL parties within 14 days after the service of the LAST pleading on a jury-triable issue

Question 4

judgment at trial - JMOL - general rules (standard, timing, what you need to support your motion)

i.e. motion for directed verdict

Answer 4

(a) Judgment as a Matter of Law.
(1) In General.If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

> > > (A) resolve the issue against the party; and

> > > (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

**(2)Motion.A motion for judgment as a matter of law may be made at any time BEFORE the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. FRCP 50

Question 5

who can serve on a jury? (6 characteristics)

Answer 5

A person can serve on a jury unless:

(a) she is not a United States citizen;
(b) is under 18 years of age;
(c) is illiterate;
(d) is not fluent in English;
(e) is mentally or physically infirm; or
(d) has been charged with commission of a crime, or been convicted in a federal or state court of record for a crime for which the term of imprisonment is one year or more, and the person’s civil rights have not been restored.

Question 6

FRCP 48 - requirements for number of jurors; verdict; polling

Answer 6

(a) Number of Jurors.A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused under Rule 47(c).
(b) Verdict.Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.

(c)Polling.After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually.
»> If the poll reveals a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to, the court may direct the jury to deliberate further or may order a new trial.

Question 7

selecting a jury - 2 parts of the process

Answer 7

Jury selection begins with potential jurors summoned to appear in court. These jurors are part of the “venire.” The venire must be a reasonable cross-section of the community.

Voir dire — the actual process of selecting a jury.

Question 8

2 types of juror challenges; presumption regarding financial relationship

Answer 8

Peremptory challenges — for any reason (note: there are constitutional limitations however — cannot, for example, strike a juror based on race or gender); LIMITED number

For-cause challenges —- used when a juror evinces bias (actual or implied); UNLIMITED number
»> there is a presumption that any direct financial relationship between a juror and a party will impair the juror’s ability to be impartial (no matter how much money is involved)

Question 9

jury instructions - how it works

Answer 9

At the close of evidence, a party may file proposed jury instructions.

Judges normally inform parties of the instructions they plan to give and the parties have an opportunity to challenge existing instructions or propose new ones.

If a party wishes to object to a jury instruction, they must do so and do so outside the presence of the jury — (preserve the issue on appeal for abuse of discretion review)
»> if not preserved, it is technically WAIVED, but possibly could still challenge under the PLAIN ERROR standard (the erroneous instruction affected a party’s substantial legal rights) - will generally LOSE

Question 10

remittitur

Answer 10

If the trial judge believes that the jury’s compensatory damage award is so excessive as to shock the conscience, the judge may order a new trial or off the alternative of a remittitur.

When offered a remittitur, the plaintiff is given the choice between accepting the award less than that given her by the jury or submitting to a new trial.

**note, no additurs at the federal level

Question 11

verdict forms - 2 types and who decides which to use

Answer 11

The trial court decides whether the verdict form is general or special. (FRCP 49)

In a general verdict, the jury finds for the plaintiff or defendant and gives the amount of damages or relief due.
»> A general verdict implies that all essential issues were found in favor of the prevailing party.

In a special verdict, the jury is asked to make a finding on all material conclusions of fact the court applies the law.

Question 12

bench trials - 3 general rules

Answer 12

In an action tried on the facts without a jury … the court must find the facts specially and state its conclusions of law separately.” FRCP 52

Judge’s failure to do is reversible error.

There is no requirement that either party file proposed findings or conclusions before the judge rules.

Question 13

FRCP 60 Relief from Judgment - general rules (6 categories)

i.e. motion to set aside

Answer 13

(b)Grounds for Relief from a Final Judgment, Order, or Proceeding.On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

**(1) mistake, inadvertence, surprise, or EXCUSABLE neglect;

**(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial underRule 59(b);

**(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief (super narrow)

Question 14

FRCP 60 Relief from Judgment - timing & appellate SOR

i.e. motion to set aside

Answer 14

A motion underRule 60(b)must be made within a reasonable time—and for reasons (1), (2), and (3), a REASONABLE TIME (no more than a year after the entry of the judgment or order or the date of the proceeding)

> > > **NO 28 DAY REQ like mtn for NT

appellate SOR: abuse of discretion

Question 15

findings of fact (weight in bench trial vs jury trial)

Answer 15

In a bench trial, the trial judge will make findings of fact. The trial judge’s findings of fact will not be disturbed on appeal unless they were CLEARLY ERRONEOUS

A factual determination by a jury is afforded even greater weight on appeal - the “no reasonable juror” standard

Question 16

JMOL & JNOV - timing/renewal rules

Answer 16

 50a mtns (JMOL) can be asserted at either the end of P’s case at trial, (once P has been “heard on the issue”) at the end of D’s case or both

 **a party can make a 50b mtn (JNOV) only when that party previously made a 50a mtn that raised the SAME DEFECT in opp’s case

 **a party’s 50a mtn cannot be appealed unless the mtn was renewed by a 50b mtn
»> so essentially you need a 50a to file a 50b, and you need BOTH to be able to appeal the issue

 the COA will typically review “de novo” – assuming the decided facts, but making up their own mind on the application of the law
»> unlike the “abuse of discretion” review that denial of a mtn for NT gets

 50b timing - No later than 28 days after the entry of judgment

Question 17

jury trials - claims of law & equity

Answer 17

**seventh amendment only guarantees a jury in actions at LAW (not equity)

o in a mixed action, the presence of legal claims means that such claims must be dealt with FIRST before a jury, THEN the equity claims are determined by the judge

 **the determination of the legal issue will be the basis of determination on the equitable claim (it comes first so it is binding on the rest of the litigation)

 if a claim is made in equity and a CC is made in law, the court will still have a jury first decide the legal issue (remember, they must however pertain to the same claim/issue)

Question 18

adjudication without trial - TRO & preliminary injunction

Answer 18

TRO preserves status quo until preliminary injunction:

• must show: SPECIFIC FACTS showing IMMEDIATE and IRREPARABLE harm will occur before the adverse party can be heard in opposition
• if you want it granted EX PARTE, you must ALSO:

> > > certify in writing all efforts made to give notice to the adverse party and why notice should not be required, AND

> > > provide some security to pay for any costs/damages incurred by the adverse party if it is wrongfully enjoined

• duration: effective for no more than 14 days, or a lesser time stated by the court (can have a good cause extension of up to 14 more days MAX)

preliminary injunction preserves status quo until trial:

• party must show:

> > > irreparable harm
likely to win on merits
balance of hardships
public interest

• order granting/denying a PI may be appealed AS OF RIGHT

Question 19

adjudication without trial - voluntary dismissal

Answer 19

• plaintiff may withdraw the case via a NOTICE of dismissal before defendant serves an answer or MSJ
• after that, plaintiff must make a MOTION for voluntary dismissal at court discretion
• first VD is WITHOUT prejudice (any further VD, that is WITH prejudice - doesn’t matter if different courts)

Question 20

FRCP 59 Grounds for a New Trial - when will a court grant; when it cannot grant; timing; standard of appellate review

Answer 20

 court will grant motion for NT when there is any non-harmless error that makes the judge think there should be a do-over, such as:

>>> erroneous jury instruction
>>> new evidence was discovered
>>> misconduct by a party/juror/lawyer
>>> judgment is against the weight of the evidence
>>> damages are inadquate/excessive

 what courts CANNOT do is grant a new trial simply because the court would have come to a different conclusion than the jury did

 timing: motion for a new trial must be filed **no later than 28 days after the entry of judgment (if beyond the 28 days, look to R60 and just try to get “Relief from Judgment”!)

 appellate reivew: denial of a mtn for NT gets abuse of discretion review (more deferential than review of a JNOV)