Trial and Post-trial (mod 12)

Question 1

Rule 26(f) conference

Answer 1

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

Question 2

Contents of discovery plan

Answer 2

Must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it, etc

Question 3

Scheduling order

Answer 3

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

Question 4

Pretrial conferences and final pretrial conference

Answer 4

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

Question 5

Motion in limine

Answer 5

Pretrial motion outside of the presence of the jury to decide whether the jury should hear certain evidence

Question 6

Right to jury trial generally

Answer 6

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

Question 7

Jury trial - mixed suits of law and equity and same facts for both

Answer 7

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

Question 8

Jury demain

Answer 8

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

Question 9

Challenges to jurors

Answer 9

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

Question 10

Jury instructions

Answer 10

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

Question 11

Jury instruction chosen during trial - procedures

Answer 11

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

Question 12

General verdict, general verdict with written questions, special verdict

Answer 12

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

Question 13

Entering judgment - general verdict, special verdict, or general verdict with question

Answer 13

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

Question 14

Inconsistency between general verdict and written questions

Answer 14

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

Question 15

Juror misconduct

Answer 15

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

Question 16

Bench trial

Answer 16

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

Question 17

Motion for Judgment as a Matter of Law (JMOL)

Answer 17

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

Question 18

Timing of JMOL

Answer 18

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

Question 19

Renewed Motion for Judgment as a Matter of Law (RJMOL)

Answer 19

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

Question 20

Timing and prereqs for RJMOL

Answer 20

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

Question 21

Motion for New Trial

Answer 21

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

Question 22

Some reasons for a new trial

Answer 22

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

Question 23

New trial on basis of damages inadequate or excessive

Answer 23

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

Question 24

Remittitur

Answer 24

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

Question 25

Additur

Answer 25

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

Question 26

Defendant - offers to settle and cost-shifting

Answer 26

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

Question 27

Motion for relief from order or judgment (5 grounds)

Answer 27

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