SJ cont class 10 and judge or jury Flashcards
rule 56 SJ
The court shall grant SJ if the movant shows that there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. . . .
burden on party opposing SJ
In order to withstand a summary judgment motion once the moving party has made a prima facie showing to support its claims the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.
USC § 455: Disqualification of Judges
General Rule: Judge should disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Specific disqualification circumstances :
Personal bias, prejudice, or knowledge of disputed facts concerning the proceeding;
Served as a lawyer or material witness in the matter;
Was government counsel, adviser or material W or expressed opinion concerning its merits;
J or household has financial interest in the subject matter; or
J, spouse or relative is a party, lawyer, material W, or has an interest that could be substantially affected by the outcome.
7th amendment
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . . .
historical distinction between law and equity
Courts of law issued legal remedies and maintained right to jury. Primarily money damages; also issued writs of replevin and ejectment.
Courts of chancery issued equitable remedies and did not extend the right to jury trial.
Examples of equitable remedies, p. 608
applying historical test to new terms and procedures
(1) Compare the statutory action to 18th century actions brought in the courts of England prior to merger of law & equity; and more importantly
(2) Examine the remedy sought and determine whether it is legal or equitable in nature.
rule 38 right to a jury trial, demand
Right of trial by jury as declared by 7th A – or as provided by a federal statute – is preserved.
On any issue triable of right by a jury, a party may demand jury trial by:
Serving the other parties with a written demand – which may be included in a pleading – no later than 14 days after the last pleading directed to the issue is served; and
Filing the demand in accordance with Rule 5(d).
(d) A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.
right to a jury
P files claim for specific performance of contract for sale of real property and D files counterclaim for damages arising from Plaintiff’s fraud in inducing D to enter the contract.
Who can make the request?
By when must it be made?
When a case blends equitable and legal claims, and factual issues overlap, the judge will allow the jury to decide those facts, and then the judge will determine the equitable claims.
jury selection
Summons
Voir dire
Peremptory and for cause challenges
Peremptory challenges are limited by equal protection/nondiscrimination requirements – Batson v. KY (race); JEB v. AL (gender)
“Batson challenges” in operation: note 1 p. 617; party challenging the strikes must make initial showing of unlawful pattern, then the other party must offer a nondiscriminatory reason for the strike.
Example of Thompson v. Altheimer & Gray (7th Cir. 2003), Note 3 p. 618.
rule 16 e final pretrial conference order
The court may hold a final pretrial conference to formulate a trial plan …
The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party.
The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.
Examples here and here
