Pg 35

Question 1

When does an appeal happen?

Answer 1

When the trial is over and it is made by the party that lost. If the person made a motion for a new trial, directed verdict, judgement as a matter of law, etc. and all were denied, then he can appeal the case

Question 2

What is an appeal of right?

Answer 2

This gives you 30 days to appeal from a federal district court to a court of appeals after the entry of final judgment. The notice of appeal must be filed with the district court clerk, who sends it to the US Court of Appeals

Question 3

Appeals from the federal district court can be appealed to courts of appeal, and then what is the appeal that goes to the Supreme Court?

Answer 3

A discretionary appeal

Question 4

How do the parties present to an appellate court on appeal?

Answer 4

Through written briefs and oral arguments. Questions of fact are rarely made here.

Question 5

What are the options for an appellate court ruling?

Answer 5

Affirm, reverse, or modify the previous judgement

Question 6

What is the point of concurring and dissenting opinions that get included in an appellate decision?

Answer 6

To give guidance to other courts, lawyers, and the public

Question 7

If the time for appeal has expired, is the judgement final?

Answer 7

Yes and it becomes rest judicata

Question 8

What does res judicata mean?

Answer 8

A thing decided

Question 9

If a judge decides to reverse a decision on appeal, what does that mean?

Answer 9

He orders a new judgement be entered

Question 10

If a judge remands a case, what does that mean?

Answer 10

He sends the case back to the trial court for a new trial

Question 11

What is the final judgement rule?

Answer 11

Only final judgements can be appealed.

Exceptions:

• interlocutory appeals
• injunctions or temporary restraining orders that are immediately appealable even if the case is still going on
• collateral orders or contempt citations that are separate from the merits and the party is being sanctioned for can be immediately appealed
• writ of mandamus where you think the trial court acted beyond its powers and that seriously injured the client
• immediate appeal to ask the appellate court to force a trial court to act or refrain, etc.

Question 12

What is the appellate court limited to?

Answer 12

Only what is in the records. You cannot bring in new witnesses, evidence, or facts that weren’t introduced in the trial court

Question 13

What is the standard for what an appellate court must find?

Answer 13

They must find that the trial court ruling was clearly erroneous in order to overturn it. The reviewing court must be left with a definite or firm conviction that a mistake was committed based on the entirety of the evidence. If the lower court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeal can’t reverse it even though convinced it would have weighed the evidence differently. If there are two possible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous

Question 14

What are the limits on the scope of appellate review?

Answer 14

The error must appear in the trial court record and the aggrieved party must have objected to the trial court ruling or events

Question 15

In order to get appellate review, is harmless error enough?

Answer 15

No, there must’ve been substantial rights that were affected and relevant parts of the trial court record must be brought to the appellate court’s attention

Question 16

If someone brings an appeal that is frivolous and the arguments are obviously without merit, what can be given?

Answer 16

An award of damages or double costs to the prevailing party because of the delay

Question 17

If an action is a multiple claim action, is it possible to get an appeal from one or more final decisions on individual claims without having to wait for a final decision to be given on all of the claims of the case?

Answer 17

Yes.

Question 18

What is the collateral order doctrine?

Answer 18

Exception to the final order doctrine that allows appeals from interlocutory rulings if the ruling conclusively decided an issue that was separate from the merits of the case and would be effectively unreviewable after a final judgment. If this is successful, the collateral order can be appealed during the pendency of the case.

Question 19

What is the test under the collateral order doctrine to see if an order is appealable?

Answer 19

The order is appealable IF:
– it conclusively determines the disputed question
– it resolves an important issue completely separate from the merits of the action
– it is effectively unreviewable on appeal from the final judgement

Question 20

What is the binding effect of decisions?

Answer 20

Claim preclusion

Question 21

When does claim preclusion happen?

Answer 21

When previous litigation is followed by a new case with mention of a judgement or dispute that was adjudicated before another and a question about the second being affected by the first comes into play

Question 22

What are things that are included in the definition of judgment?

Answer 22

Money given to the plaintiff, declaration of the parties’ rights, specific performance, and injunctions

Question 23

If a defendant wins, what is the judgement usually for?

Answer 23

Usually nothing, the plaintiff takes nothing from the complaint

Question 24

If a defendant doesn’t appear, can judgement be entered?

Answer 24

Yes, on default

Question 25

What is a writ of execution?

Answer 25

When the court authorizes a sheriff to seize someone’s property and to sell it at public auction and then to use the money to satisfy a judgement if the losing party will not pay

Question 26

Can a claim consist of more than one cause of action?

Answer 26

Yes. A claim is all the remedial rights that the plaintiff has against the defendant growing out of a transaction or occurrence or series of transactions and occurrences. It is a nucleus of operative facts

Question 27

How many chances do parties get to litigate a claim?

Answer 27

One. If a party litigates only part of a claim the first time, he risks losing the chance to litigate the rest. The party is entitled to at least one full and fair chance to litigate before being precluded

Question 28

What are the major ways that there is a binding effect from decisions?

Answer 28

– Res judicata

– Collateral estoppel

Question 29

What is the difference between res judicata and collateral estoppel?

Answer 29

– Rest judicata: claim preclusion

– Collateral estoppel: issue preclusion

Question 30

What is res judicata?

Answer 30

No person should be subject to the same claim twice. This prevents a party from suing on a claim that he has already had decided by the courts (or could have been brought).

Once parties have had a full and fair opportunity to be heard, and the plaintiff wins, his claim is merged into the judgment and is extinguished and replaced by the judgment, so no further suit can be brought on the extinguished claim. This bars the party from suing for any kind of relief arising from that particular transaction or occurrence if he previously brought an action against that person based on that same transaction or occurrence and the action was decided on the merits.

Question 31

What is the goal of res judicata?

Answer 31

To give finality to litigation and prevent the parties from suing on claims that have already been decided

Question 32

As far as res judicata is concerned, what happens to your claim if you win and what happens if you lose?

Answer 32

• win: the claims are merged

– lose: the claims are barred

Question 33

Does res judicata also apply to defenses?

Answer 33

Yes you cannot bring new defences to defeat an earlier judgement

Question 34

Is res judicata waivable?

Answer 34

Yes

Question 35

If plaintiff loses a claim, what does res judicata do?

Answer 35

It makes a claim barred by the adverse judgement so that no further suit can be brought

Question 36

Is res judicata a defense?

Answer 36

Yes, it is an affirmative defense, so it can be waived by the defendant and must be raised as an affirmative defence in a suit

Question 37

What are the five prerequisites that are needed for the affirmative defence of res judicata?

Answer 37

– final valid judgment
– on the merits
– same claims and subsidiary issues
– claim was or could have been litigated even if it wasn’t actually litigated
– same parties or persons in privity

Question 38

What is involved in the prerequisite for res judicata that calls for a final valid judgment?

Answer 38

Until there’s a final judgement entered in the trial court, there cannot be a res judicata action.

There is a split in the courts where some say that res judicata is only effective when the time for appeal has passed or the case is resolved by the appellate court, while others say that the case is final even if an appeal is pending

Question 39

What is involved in the prerequisite for a res judicata claim that requires that the final judgement be valid?

Answer 39

The court must have the ability to issue the decision, which means there must be subject matter jurisdiction and personal jurisdiction. If the first judgement was gotten by fraud, it is not usually considered to be binding