Topics 9 - 13 MC3

Question 1

Rule 55 creates a two-step process

Answer 1

1. Obtain a default. Rule 55(a)
2. Convert the default to a default judgment by establishing damages. Rule 55(b)

Question 2

Rule 55(a) – Obtaining a default

Answer 2

“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.”

Question 3

Rule 55(a) – Obtaining a default. Who can this be used against?

Answer 3

D if D fails to answer (most common use);
P as the counter-defendant (if D has a counterclaim and P fails to answer the counterclaim)

Question 4

Rule 55(b) – Turning a default into a default judgment

Answer 4

The default is treated as an adjudication on the merits in favor of the moving party.
It is as if the moving party had won their claims at trial.

Question 5

The key to turning a default into a default judgment is

Answer 5

establishing the amount of damages

Question 6

Rule 55(b)(1) Turning a default into a default judgment

Answer 6

“If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk—on the plaintiff’s request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing … .”

Question 7

What is a sum certain?

Answer 7

A sum certain is an amount that can be determined with certainty from the available information without resort to additional evidence.
The key is whether the amount of damages can be calculated without needing an evidentiary hearing.

Question 8

Not a sum certain

Answer 8

A claim for pain and suffering is not a “sum certain” because there is no simple and undisputed way of determining what pain and suffering is worth.
Other sorts of hard to calculate damages (like lost profits or reputational damage) are also not sum certains.

Question 9

Rule 55(b)(2) Turning a default into a default judgment

Answer 9

“In all other cases, the party must apply to the court for a default judgment. … The court may conduct hearings … when, to enter or effectuate judgment, it needs to …
determine the amount of damages …”

Question 10

Is notice a requirement for default judgment

Answer 10

yes

Question 11

Rule 41(b) – Involuntary Dismissals

Answer 11

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.

Question 12

What is a “failure to prosecute”?

Answer 12

The rule does not include a bright line definition, and courts have acknowledged that involuntary dismissal is an extreme sanction. Nevertheless, courts look for a “pattern of delay.”

Question 13

What is a “failure to prosecute”?

Answer 13

The rule does not include a bright line definition, and courts have acknowledged that involuntary dismissal is an extreme sanction. Nevertheless, courts look for a “pattern of delay.”

Question 14

A dismissal under Rule 41(b) is treated as “an adjudication on the merits.”
what does this mean

Answer 14

This means that a plaintiff who has their claim involuntarily dismissed generally cannot re-file the same claim in a later action. It will be barred by the doctrine of claim preclusion b/c the merits of the claim were already adjudicated in D’s favor in the earlier action.

Question 15

Rule 41(a)1 – Voluntary Dismissal

Answer 15

P can obtain a voluntary dismissal without leave of court:
If P files a notice of dismissal before D answers; or
If all the parties stipulate to a voluntary dismissal.

Question 16

does a voluntary dismissal prevent P from re filling the claim in a later lawsuit

Answer 16

No

Question 17

Common reasons for voluntary dismissal include:

Answer 17

P realizes that venue is improper
P realizes that D is not subject to PJ in forum
P realizes that court lacks SMJ over claims

Question 18

Rule 41(a)(2) Voluntary Dismissal

Answer 18

“Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.”

Question 19

Rule 41(a) – Voluntary Dismissal Two important caveats:

Answer 19

A voluntary dismissal only applies to P’s claims. If D has already filed an answer and counterclaim, P may be able to use Rule 41 to dismiss P’s claims, but it does not result in a dismissal of D’s counterclaim(s).
“If a defendant has pleaded a counterclaim before being served with plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication.” (R. 41(a)(2))

Question 20

Rule 23(e) - Settlement of Class Actions

Answer 20

“The claims, issues, or defenses of a certified class … may be settled, voluntarily dismissed, or compromised only with the court’s approval.”
“If the proposal would bind class members, the court may approve it only after a hearing and only on finding that it is fair, reasonable, and adequate …”

Question 21

Why an exception for class actions?

Answer 21

Possibility of internal conflicts between class representatives/class counsel and the rest of the class. Means the judge needs to review any settlement to make sure it is fair to the class.
Congress can impose statutory limits on certain kinds of settlements or impose requirements that must be met for the settlement to be valid.
E.g., age discrimination claims can only be settled under certain conditions (like giving the settling party a week to revoke the settlement)

Question 22

After you reach agreement on the key terms of the settlement . . . what next?

Answer 22

Once you have reached an agreement about the key terms of the settlement, you must decide how to give effect to the agreement.

Question 23

What is the most significant problem with an oral agreement not to sue?

Answer 23

Statute of frauds may prevent you from proving the existence of the contract.
In other words, an oral agreement not to sue may not be enforceable.

Question 24

Pre-Filing Written Agreement

Answer 24

If there is no existing litigation, then a written agreement that releases any claims the prospective plaintiff might have and includes a promise not to sue is probably the way to go. This is usually called a release.

Question 25

What is the problem with simply having P voluntarily dismiss the suit upon signing the settlement agreement (or receiving your client’s check)?

Answer 25

Voluntary dismissals under R. 41(a) are presumptively w/o prejudice. That means P could re-file the suit. Of course, you could still raise an affirmative defense of release. But your client would prefer not to be sued again.

Question 26

What is a stipulated judgment?

Answer 26

A stipulated judgment is a judgment agreed to between the parties (often as part of a settlement agreement). The judge then enters the agreement as the judgment of the court. Thus the terms of the agreement become part of the judgment and can be enforced by the court.

Question 27

The Court Can Push Parties to Settle Rule 16(a)(5) –

Answer 27

Rule 16(a)(5) – the court may order a pretrial conference to “facilitat[e] settlement”

Question 28

The Court Can Push Parties to Settle Rule 16(c)(2)(I)

Answer 28

Rule 16(c)(2)(I) – the court may use “special procedures” to facilitate settlement where permitted by statute or local rule

Question 29

Mediation

Answer 29

The process of using a neutral third party (the mediator) to facilitate communication between the parties and aid in settlement.
Generally non-binding
Success is highly dependent on the parties trusting the mediator
mediator must be perceived as neutral, and the parties must respect his or her expertise

Question 30

Two principle roles for mediator:

Answer 30

Facilitate communication by acting as a buffer between parties; and/or
Help parties evaluate the strengths and weaknesses of their case

Question 31

Court-Facilitated Mediation

Answer 31

Judges often have the power (given through local rules) to require the parties to engage in some sort of mediation prior to scheduling a trial date. Judges also have an incentive to encourage mediation b/c every settled case is a case that is off their docket.

Question 32

Features of Arbitration

Answer 32

Parties submit their dispute to a third party who evaluates their claims and decides who wins and loses.
Binding (usually the parties enter into a contract that makes the decision of the arbitrator(s) binding)
In practice, the agreement to arbitrate often occurs before the parties know there is a dispute

Question 33

Reasons to choose arbitration More final than a court decision

Answer 33

Arbitration decisions are generally not appealable except to prove fraud or corruption by an arbitrator. I.e., no appeals because arbitrators got the decision “wrong.”

Question 34

Reasons to choose arbitration Parties have control over the nature of the proceedings

Answer 34

Parties can choose a procedure that looks like litigation, or they can choose a stripped down procedure (no or limited discovery, etc.) Parties can also choose the law that guides the arbitrators (including choosing not to have them bound by the law – i.e., use equity to decide).

Question 35

Reasons to choose arbitration Can cost less than litigation

Answer 35

Particularly if parties limit some of the more expensive parts of litigation, like discovery. On the other hand, the parties must pay the arbitrators’ salaries, whereas you don’t pay the judge’s salary in litigation.

Question 36

Reasons to choose arbitrationParties can choose experts as arbitrators

Answer 36

Parties control selection of arbitrators and can choose subject matter experts. Could be useful in highly technical fields (like engineering or financial services).

Question 37

Reasons to choose arbitrationGreater privacy

Answer 37

Many aspects of litigation are presumptively public (although you can use protective orders to make some things private). You can set up arbitration so that the default position is that everything (even the fact that arbitration is occurring) is secret.

Question 38

Reasons to choose arbitration Manage risk of all or nothing decisions

Answer 38

There is a belief that arbitrators are more likely to reach compromise decisions than judges (particularly if they are not required to follow the substantive law). Parties can also write arbitration agreements that cap damage awards.

Question 39

Federal Arbitration Act (FAA)

Answer 39

A federal statute (9 USC Secs. 1-16) that promotes the use of arbitration as an alternative to litigation.
It overruled the common law position that contract provisions that deprived people of their right to sue in court were void as contrary to public policy.

Question 40

FAA – Section 2

Answer 40

Contracts to arbitrate are generally enforceable:
“A written provision in any . . . contract . . . to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

Question 41

FAA – Section 3

Answer 41

Courts must stay litigation if one of the parties requests a stay and demonstrates that the dispute is subject to an arbitration agreement
“If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, . . . shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement . . . .”

Question 42

FAA – Section 4

Answer 42

Permits a party to an arbitration agreement to apply for a court order directing the other party to proceed to arbitration
“A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28 . . . , for an order directing that such arbitration proceed in the manner provided for in such agreement.”

Question 43

When are contracts to arbitrate not enforceable?

Answer 43

When a party has a basis recognized under contract law to revoke the agreement (like fraud, duress or unconscionability).
Usually, this involves a claim that the arbitration provision is unconscionable and t/f unenforceable.

Question 44

Procedural unconscionability

Answer 44

refers to the manner in which the contract was negotiated and the relative bargaining power of the parties at the time of negotiation.

Question 45

Substantive unconscionability

Answer 45

refers to the actual terms of the agreement and whether they favor one side over the other

Question 46

Summary Judgment Rule 56(a)

Answer 46

Moving party must show that:
there is no genuine dispute as to any material fact;
AND
the movant is entitled to judgment as a matter of law.

Question 47

When must a jury find a certain way on a contested fact?

Answer 47

If the moving party provides evidence that fact A exists and the opposing party produces no evidence to contradict the existence of fact A, then a jury could only find that fact A exists. We call this a situation where there is no genuine dispute as to the existence of fact A.

Question 48

is it possible to win a partial summary judgment as to particular facts, claims or defenses.

Answer 48

See Rule 56(a) (noting that SJ can be sought as to “part[s]” of claims or defenses).

Question 49

Who can move for summary judgment?

Answer 49

Either side:
A party claiming relief may move for SJ
A party against whom relief is sought may move for SJ.

Question 50

When can you move for SJ?

Answer 50

Technically, you can file at any point up until 30 days after the end of discovery. R. 56(b). But usually, SJ motions are made at or near the end of discovery because this is when the parties will know whether the other side can support the contentions in their pleadings

Question 51

What material can be used at SJ?

Answer 51

Rule 56(c)(1)(A) says that SJ motions can be supported with:
Depositions, documents, electronically stored information, affidavits, declarations, stipulations, admissions, interrogatory answers, or other materials
That are “in the record”

Question 52

Aren’t all the discovery responses already on the record?

Answer 52

No. Documents exchanged between the parties during discovery are not filed with the court. Depositions transcripts are not filed with the court, etc. Discovery responses are not on the record unless the parties put them on the record by filing them with the court.

Question 53

What are the requirements of an affidavit? See R. 56(c)(4).

Answer 53

Must be:
on “personal knowledge”; and
contain matters that would be admissible in evidence.

Question 54

Why might the parties use affidavits?

Answer 54

To put on the record information that is not available through documents or depositions that have been taken.

Question 55

Summary Judgment First Phase

Answer 55

Burden is on the moving party to present the evidence it believes necessary to establish that it is prima facie entitled to SJ

Question 56

Summary Judgment Second Phase
Phase

Answer 56

Burden switches to the non-moving party to respond with evidence that contradicts the showing made by the moving party.

Question 57

Offensive SJ

Answer 57

If Plaintiff moves for SJ in her favor on her own affirmative claim of negligence this is called an offensive SJ motion. Since P would bear the burden of establishing all of the elements of her claim at trial, to prevail at SJ she must establish all of the elements of her claim to be “entitled to judgment” on her claim.

Question 58

defensive SJ

Answer 58

If Plaintiff moves for SJ in her favor on Defendant’s claim of negligence, this is a defensive SJ motion. Since D would bear the burden at trial of establishing all the elements of D’s claim to prevail, Plaintiff must defeat only one of the elements of Defendant’s claim to be “entitled to judgment” on that claim.

Question 59

How do you get them on the record so that they can be used in your SJ motion?

Answer 59

You attach them to your SJ motions as exhibits. They then become part of the record.

Question 60

Affidavits are limited by the requirement of

Answer 60

personal knowledge. See Rule 56(c)(4).

Question 61

Reasons for disqualifying judges

Answer 61

Judge has engaged in unethical or illegal conduct
Judge is unable to fulfill the duties of office
Judge is biased against your client

Question 62

Judge conduct 28 USC 351

Answer 62

“Any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct.”

Question 63

Judge conduct 28 USC 351

Answer 63

“Any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct.”

Question 64

Recusal (judge)

Answer 64

“Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.”

Question 65

What do you do if you think your judge is biased against you or favors your opponent?

Answer 65

File an affidavit under 28 USC 144.

Question 66

Who will rule on your accusation?

Answer 66

Your judge! In other words, you must accuse your judge of bias and then he or she will rule on your accusation.
This is not a motion you want to make rashly because if you lose you are going to be stuck for the rest of the case with a judge you have accused of being biased – not a good outcome.

Question 67

If you lose on your first affidavit, can you try again later in the case?

Answer 67

No. “A party may file only one such affidavit in any case.”

Question 68

What is the standard for determining whether a judge should be disqualified for bias or prejudice?

Answer 68

The standard is contained in 28 USC 455

Question 69

Disqualifying Judges 28 USC 455 a

Answer 69

“Any justice, judge, or magistrate judge of the United States shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned.”

Question 70

Disqualifying Judges 28 USC 455 b

Answer 70

1 A judge will be disqualified if the judge:
Has personal knowledge of disputed facts concerning the proceeding
2 Served in private practice as a lawyer in the same matter or controversy
3 Is a material witness in the matter
4 Worked for the government and in that capacity served as counsel, adviser or witness regarding the same matter or expressed an opinion regarding the merits of the dispute
5 Has a fiduciary or financial interest in the matter or in one of the parties to the proceeding (or a spouse or minor child does so)
6 A spouse, child or other close relative is one of the parties, a witness, or one of the lawyers in the proceeding.

Question 71

Waiver – 29 USC 455(e)

Answer 71

Violations of 455(b) are non-waivable.
But a violation of 455(a) can be waived, so long as both parties agree and the reason for the waiver is disclosed on the record.

Question 72

Requesting a Jury Trial Rule 38(b)

Answer 72

On any issue triable of right by a jury, a party may demand a 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). Can be requested in the complaint. Right is waived after 14days 38d.

Question 73

Rule 52(a)(1).
Bench Trial

Answer 73

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

Question 74

Jury verdicts contain:

Answer 74

A jury verdict will not contain an explanation of what facts the jury found or how it applied those facts to the law. You just get an answer.

Question 75

bench trials results:

Answer 75

A bench trial results in a detailed explanation of how the judge arrived at his or her conclusion.

Question 76

Why must the judge make separate findings of fact and conclusions of law?

Answer 76

“Findings of fact … must not be set aside unless clearly erroneous ….” R. 52(a)(6).

Question 77

Does Rule 52 suggest why factual findings should be given more deference on review?

Answer 77

Rule 52(a)(6) suggests that the judge’s ability to see and hear the witnesses gives her a better basis for evaluating their testimony than the appeals court (which will only see transcripts of the testimony).
Thus, appeals courts should defer to the trial judge’s factual findings.

Question 78

Rule 52(a)(6) bench trial appeals and lower court job

Answer 78

“Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”

Question 79

When are you entitled to a jury trial?

Answer 79

“The right of trial by jury as declared by the Seventh Amendment to the Constitution . . . is preserved to the parties inviolate.” Rule 38(a).

Question 80

Seventh Amendment (1791)

Answer 80

1. “In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved
2. and no fact tried by a jury shall otherwise be reexamined in any court of the United States, than according to the rules of the common law.”

Question 81

The use of the word “preserved” is extremely important.

Answer 81

It has been interpreted as meaning that the Seventh Amendment preserves the right to a jury trial that existed when the amendment was adopted in 1791. In other words, to know whether a right to jury trial exists on a claim today, you have to know whether your claim would have been tried to a jury or not in 1791!

Question 82

So, if in 1791 your claim (or your requested relief) could only have been brought in a common law court

Answer 82

you would have been entitled to a jury. Therefore, when that same claim is brought today, it is also entitled to a jury trial.

Question 83

But, if your claim (or your requested relief) in 1791 could only have been heard in a court of equity,

Answer 83

then you would not have received a jury then and are not entitled to a jury now.

Question 84

Court of law (Right to jury trial)

Answer 84

Money damages
Replevin (recovery of personal prop.)
Ejectment (recovery of land)
Writ of mandamus
Writ of habeas corpus
Trespass

Question 85

Court of equity (No right to jury trial)

Answer 85

Injunctions
Specific performance of a contract
Rescission of a contract
Reformation or cancellation of a contract
An accounting
An action to quiet title
Request for a constructive trust

Question 86

When there are mixed legal and equitable claims, how is the 7th Amendment given effect?

Answer 86

The jury trial on the legal claims occurs first
Then the equitable claims are resolved by the judge
BUT the outcome of the jury trial controls any common issues of fact that arise in the equitable claims.

Question 87

The jurors that will hear the case are then selected from the panel through a process known as

Answer 87

voir dire.”

Question 88

During the jury selection process, potential jurors can be excluded:

Answer 88

If they are impermissibly biased or prejudiced. This is called disqualification for “cause.”
OR
Using something called a “peremptory challenge”

Question 89

Voir dire

Answer 89

is typically Judge-led. Judge asks potential jurors questions designed to find out whether they should be excluded for cause. Judges may let lawyers ask questions as well, although some judges will only let lawyers propose questions but ask the questions themselves.

Question 90

In a challenge for cause, you must show that it would be inappropriate for a potential juror to decide your case. Valid reasons include:

Answer 90

the juror has personal knowledge of the disputed facts;
has some financial or personal stake in the outcome;
knows, is related to, or is good friends with one of the parties or the witnesses; or
is impermissibly biased.

Question 91

What happens if you find out (usually after the verdict) that one of the jurors lied during voir dire?

Answer 91

You can make a motion for a new trial.
If the juror lied about a material question; and
if the correct answer would have resulted in the juror being struck for cause.

Question 92

Peremptory Challenges

Answer 92

a challenge to a juror that is not based on a justification that would result in a juror being struck for cause. can only make a limited number of peremptory challenges

Question 93

under 28 usc 1870 how many peremptory challenges do you get

Answer 93

civil cases so three

Question 94

Final Pre-Trial Conference
Rule 16(e)

Answer 94

“The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence.”
“The conference must be held as close to the start of trial as is reasonable.”
“The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.”

Question 95

Timing of Final Pre-Trial Conference

Answer 95

Takes place after Pre-Trial Disclosures have been filed (which are due 30 days before trial) because the judge needs the pre-trial disclosures (i.e., the witness lists and exhibit lists) to formulate the trial plan.
But “as close to the start of trial as reasonable.”
Result: Usually takes places 2-3 weeks before jury selection is scheduled.

Question 96

What are jury instructions?

Answer 96

The judge must tell the jurors what law they are to apply to decide the case. We call these “jury instructions.” She usually reads them aloud to the jurors. They can be quite long.

Question 97

How are these jury instructions created?

Answer 97

It is a multi-stage process involving the parties and the judge. That process is laid out in Rule 51.

Question 98

Creating Jury Instructions Rule 51

Answer 98

At or before the close of evidence, the parties file written requests for the specific jury instructions they would like. Rule 51(a)
Before final jury arguments and before instructing the jury, the judge must inform the parties which proposed instructions he/she intends to give. Rule 51(b)(1)
The parties are given an opportunity to object to the proposed instructions. Rule 51(b)(2)
The judge rules on the parties’ objections and (possibly) makes some changes to the proposed instructions.
Parties are told what the final instructions will be.
Parties make final arguments to the jury and the court gives jury their instructions (these can occur in either order)

Question 99

Pattern Jury Instructions

Answer 99

In practice, the parties do not generally start from scratch in creating jury instructions.
Most jurisdictions have “pattern jury instructions” which have been approved in advance by the courts and cover many common situations.
Judges will probably be inclined to follow the pattern instructions, unless the parties can make a good argument for why the judge should deviate from them.

Question 100

Objections to Jury Instructions Two kinds of objections (Rule 51(c)(1)):

Answer 100

Objection to the failure to give a requested instruction (that you requested)
An objection to a proposed instruction (proposed by the other side)

Question 101

If you request a particular instruction but the judge indicates she will not give that instruction, what should you do?

Answer 101

Object to the failure to give the requested instruction.

Question 102

If the opposing party requests an instruction that you think is inappropriate but the judge indicates that she will give that instruction, what should you do?

Answer 102

Object to the proposed instruction.

Question 103

How do you make an objection? (Rule 51(c)(1))

Answer 103

Must object on the record; and
Must state the grounds for the objection

Question 104

Why request particular jury instructions?

Answer 104

To ensure that the jury is correctly instructed on what you believe the applicable law is. If you don’t request the specific instructions you want, the judge probably won’t give them.

Question 105

Why object to improper jury instructions?

Answer 105

If you object to an improper instruction the judge may change his/her mind and not give that instruction to the jury; and
Assuming the judge gives the instruction you believe is improper to the jury, objecting to the improper instruction is a prerequisite to an appeal of the alleged error

Question 106

A party may assign as error:
rule 51d1

Answer 106

(A) an error in an instruction actually given, if that party properly objected; or
(B) a failure to give an instruction, if that party properly requested it and—unless the court rejected the request in a definitive ruling on the record—also properly objected.

Question 107

Jury Size and Unanimity Rule 48

Answer 107

(a)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)Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.

Question 108

How many jurors are you entitled to?

Answer 108

A jury must begin with at least 6 and no more than 12 jurors. See Rule 48(a).
However, the verdict must only be returned by a jury of at least 6 members. Rule 48(b).

Question 109

Must the verdict be unanimous?

Answer 109

The general rule is that the verdict must be unanimous. See Rule 48(b).
But Rule 48(b) permits the parties to agree to a non-unanimous jury. It also permits the parties to mutually agree to a jury of less than 6 persons.

Question 110

JMOL - Rule 50(a)(1)

Answer 110

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,
[then] the court may . . . [grant JMOL]

Question 111

When can a JMOL motion be made?

Answer 111

After the party has been “fully heard” on the issue Rule 50(a)(1)
But “before the case is submitted to the jury” Rule 50(a)(2)
If you wait too long, you lose the right to make the motion

Question 112

renewed JMOL Rule 50b

Answer 112

“If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), . . . [n]o later than 28 days after the entry of judgment . . . movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59.”

Note that you cannot use this rule to file JMOL for the first time after the judgment. You must have filed an initial JMOL motion before the case was submitted to the jury to be able to “renew” your motion for JMOL after entry of judgment.

Question 113

But why require a party to “renew” its JMOL motion before it can appeal?

Answer 113

Judges often decline to rule on pre-verdict JMOL motions for reasons of judicial efficiency.

Question 114

Motion for a New Trial 59b

Answer 114

“A motion for a new trial must be filed no later than 28 days after entry of judgment.” See Rule 59(b).

Question 115

Most common reasons for granting a new trial:

Answer 115

A flaw in the procedure (e.g., jury received improper evidence)
A flaw in the verdict (e.g., verdict inconsistent with jury instructions or verdict unsupported by the evidence)
“Verdict is against the weight of the evidence” (Lind v. Schenley Industries)

Question 116

An important difference btw granting JMOL and a new trial 28 USC 1291

Answer 116

“The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . .”

Only “final decisions” are automatically appealable. Non-final decisions are not appealable until a final decision has been issued.