Trial Flashcards
What is a rule 26(f) conference?
Unless court order says otherwise, at least 21 days before scheduling order, parties discuss: production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information, and must submit a detailed discovery plan.
Detailed discovery plan deadline
The detailed discovery plan must be presented to the court no later than 14 days after the conference
What must the discovery plan include?
The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (e.g., deleted files), etc.
What discovery document can you serve before discovery conference?
RFPs, not ROGs.
What is a scheduling order?
Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc. This is a roadmap for how the litigation proceeds up to trial.
What is a pretrial conference?
The court may hold “pretrial conferences” to process the case.
What is the final pretrial conference?
The final pretrial conference determines the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order, which supersedes the pleadings. This order is a roadmap of issues to be tried, evidence to be presented at trial, witness- es, etc.
The Seventh Amendment preserves the right to jury in “civil actions at law,” but not…
in suits at equity.
What is the jury right if a case includes both law and equity?
Jury decides all facts underlying damages clm, but not equity clm.
What is the jury right if a fact (e.g., whether D trespassed) underlies both a claim for damages and a claim for an injunction?
The jury decides it.
In what order will a dual law/equity trial usually proceed?
Jury determines all facts first, the judge decides equity facts.
Does the Seventh Amendment apply in state court?
No, fed civil cases only.
How do you assert your right to a jury?
Must demand the jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue (usually the answer.) If you don’t you waive the right to a jury.
How many motions to strike “for cause” can a party make?
No limit.
Is there a limit on the number of peremptory strikes?
Yes, 3 per side no matter how many parties are on each side.
Peremptory strikes may only be used in what manner?
In a race and gender-neutral manner.
How many jurors are on a civil jury in federal court?
6-12.
Juror participation in verdict
Generally, all jurors participate in the verdict unless excused for good cause.
Six jurors are empaneled and during trial one is excused for good cause because of health problems. Can the remaining five return a verdict?
No.
Unless the parties agree otherwise, what jury vote is required for a verdict?
unanimous.
Effect of jury on factual and legal findings
The jury decides facts, but is instructed on the law by the judge.
Parties submit proposed jury instructions to the judge. When do they do this?
They do this at the close of all evidence (or earlier if the court says so).
When the court makes the decision about jury instructions
Before final argument and instruction, the court in- forms the parties of: (1) what instructions it will give and (2) what proposed jury instructions it rejected.
Must the parties be allowed to make specific objections (1) to the instructions and (2) to the rejection of proposed instructions?
Yes, they must be allowed to object on the record and out of the jury’s hearing.
If objections are not made before the jury is “charged” (given the instructions), the party cannot raise a problem with jury instructions in…
a post-trial motion or on appeal.
What is the exception to the jury instruction objection rule?
Exception: even if a party did not object timely, a court can consider a jury instruction if it contained plain error.
What are the grounds to set aside an order or judgement?
