Trial and Post-trial (mod 12) Flashcards
Rule 26(f) conference
Unless the court order says otherwise, at least 21 days before the court’s scheduling order, the parties meet and confer to discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information
Must present to the court a detailed discovery plan no later than 14 days after the Rule 26(f) conference
Contents of discovery plan
Must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it, etc
Scheduling order
Unless local rule or court order says otherwise, the court enters an order setting cut-offs for joinder, amendment, motions, completion of discovery, etc
Roadmap for how the litigation proceeds up to trial
Pretrial conferences and final pretrial conference
The court may hold pretrial conferences to oversee the case
The final pretrial conference determines the issues to be tried and evidence to be proffered at trial
- recorded in the pretrial conference order, which supersedes the pleadings
- no surprises at trial
Motion in limine
Pretrial motion outside of the presence of the jury to decide whether the jury should hear certain evidence
Right to jury trial generally
7th amendment preserves the right to jury in civil actions at law, but not in suits at equity
Minimum of 6 and a maximum of 12 unless parties agree otherwise
Generally, all jurors participate in verdict unless excused for good cause
Verdict must be unanimous unless parties agree otherwise
Jury trial - mixed suits of law and equity and same facts for both
Facts underlying a damages claim will be tried to the jury, while facts relating wholly to an equity claim are tried to the judge
Generally, jury issues tried first
If same fact underlies both law and equity claim, the jury will decide
Jury demain
A party 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 party fails to do so, waives right to a jury
Challenges to jurors
Two kinds
For cause challenges
- juror will not be impartial
- unlimited number
Peremptory challenges
- party states no reason
- generally, each side limited to three
- can only be used in a race and gender neutral manner
Jury instructions
Parties submit proposed jury instructions to the judge at the close of all evidence, or earlier if court says so
Judge may hold an off the record conference with the parties
Jury instruction chosen during trial - procedures
Before final argument and instruction, and on the record, the court informs the parties of
- what instructions it will give, and
- what proposed jury instructions it rejected
Parties must be allowed to object on the record and out of the jury’s hearing
- true even if the party objected during the off the record conference
- if objections not made before the jury is charged (given the instructions), the objection is waived and can only revise for clear error that affected rights
General verdict, general verdict with written questions, special verdict
Judge decides what verdict form the jury will use
General verdict just says who wins and if plaintiff wins, what the relief is
General verdict with written questions - jury not only gives general verdict, but it also answers specific questions submitted to it
- questions ensure that the jury focused on the important issues
Special verdict - jury answers, in writing, specific written questions about the facts in dispute, but it does not say who wins or loses
Entering judgment - general verdict, special verdict, or general verdict with question
If jury returns general verdict, clerk of the court will enter the judgment
If jury returns a special verdict or general verdict with written questions and the answers are consistent with each other and with the verdict, the judge approves the judgement and clerk enters it
Inconsistency between general verdict and written questions
If the answers are consistent with each other but inconsistent with the verdict, the court may enter an appropriate judgment consistent with the answers
- or can tell jury to reconsider or order a new trial
If the answers are inconsistent with each other and one or more is inconsistent with the general verdict, no judgement may be entered
- again, can order the jury to reconsider or order a new trial
Juror misconduct
Verdict may be impeached based upon external matters
Can order a new trial if
- jurors bribed
- jurors based the verdict on their investigation of matters outside of court instead of the evidence at trial
Will not be set aside if the misconduct was harmless
Bench trial
Judge determines the facts at trial
Judge must record her findings of fact orally on the record or in writing, along with her conclusions of law
Judgment must be entered and is very short
Motion for Judgment as a Matter of Law (JMOL)
Directed verdict
Will not go to jury and motion is based upon evidence presented at trial
Reasonable people could not disagree on the result
- views evidence in the light most favorable to the non-moving party
Timing of JMOL
Can move for a JMOL any time before the case is submitted to the jury, but a court may not grant the motion until the party opposing the motion has been heard at trial on the issue
Renewed Motion for Judgment as a Matter of Law (RJMOL)
Same as a JMOL, but it comes up after trial
If granted, judgment for party that lost the jury verdict
Jury reached a conclusion that reasonable people could not reach
- views evidence in light most favorable to non-moving party
Timing and prereqs for RJMOL
Must be made within 28 days after entry of judgment
Party must have moved for JMOL at the proper time at trial and it must be based upon the same grounds as the JMOL
- if not, waives RJMOL
Motion for New Trial
Some error at trial requires that it should start over and have a new trial
Can be granted on any non-harmless error that makes the judge think there should be a do-over
Must be made within 28 days of the judgment
Could be good for someone who wants RJMOL but did not move for JMOL
- RJMOL is not as drastic
Some reasons for a new trial
Innumerable reasons, anything that went wrong
Some reasons
- judge gave erroneous jury instruction
- new evidence was discovered that could not have been discovered before with due diligence
- misconduct was committed
- the judgment is against weight of the evidence (serious error of judgment), and
- damages are inadequate or excessive
New trial on basis of damages inadequate or excessive
Ground for new trial on this basis is that the jury’s damages figure is excessive or inadequate - whether damages shocks the consciousness
To avoid a new trial, court might suggest remittitur or additur
Remittitur
Court offers plaintiff a choice
- remit part of the damages award or go through a new trial
Court cannot simply lower the figure that was set by the jury because that would violate the 7th amendment
- so must give pl the choice
Additur
Not allowed in federal court because violates 7th amendment
- but could be used in state
Offers the defendant a choice
- add to the damage award or
- go through a new trial
Defendant - offers to settle and cost-shifting
Defendant can submit formal offers to settle the case up to 14 days before trial
Rule contains cost-shifting provisions that apply when a plaintiff rejects an offer to settle and doesn’t do as well at trial as the offer
- pl liable for costs incurred after it was offered
Motion for relief from order or judgment (5 grounds)
After judgment entered, possible to obtain relief from it under certain circumstances
- clerical error: any time
- mistake, excusable neglect (including viable defense): reasonable time but never more than one year
- fraud, misrepresentation or misconduct by opposing party: reasonable time, but never more than one year
- newly discovered evidence that could not have been discovered with due diligence for a new trial motion and newly discovered facts existed at the time of trial: reasonable time but never more than one year
- judgment is void, like no SMJ: reasonable time, no maximum
