Trials Flashcards
hypo: when you have a number of similar lawsuits, involving similar but not the same issues of law and fact
ex: lawsuits against city for imposing new tax
in pursuit of consistent judgement and judicial efficiency, all similar cases will be moved to the same Section or Division in which the first filed action is pending
“consolidation of trials”
consolidation of trials will not be done if:
if consolidation will cause jury confusion
if consolidation would prevent a fair and impartial trial
give one party an undue advantage
or prejudice the rights of any party
a court may order seperate trials in order to
determine liability or damages
with consent of parties
if it will simplify the proceedings, permit more orderly disposition of case, or otherwise be in interest of justice.
2 mandatory continuance ciricumstances
the court must grant a continuance if the parties are unable, with due diligence, to obtain material evidence
a court must grant a continuance
if a material witness has absented himself without the contrivance of the party requesting the continuance.
then, adverse party can prevent continuance by requiring the requesting party to disclose under oath the expected testimony of the absent witness
and if the adverse party admits the witness would so testify, the case will proceed to trial
how to get objected-to evidence into the record anyway
this is when at trial, a voice objection is sustained
the party whose evidence was successfully objected to may make an offer of proof
this evidence is excluded from the trial but is in the appellate review record
at party’s request, court may allow excluded evidence to be offered subject to cross examination (1) on the record during a recess or (2) by deposition within 30 days of conclusion of trial.
voluntary dismissal rule
plaintiff can obtain a voluntary dismissal without prejudice prior to any appearance of record by the defendant; following any appearance by the defendant, court may decline to grant dismissal e except with prejudice
valid motion to involuntary dismissal trigger
in an action tried without a jury:
any party can move for an involuntary dismissal after close of plaintiff’s case, asserting that plaintiff has not shown any right to relief on the facts and law.
granted if court concludes by the preponderance of the evidence. court evaluates plaintiff’s evidence without applying any special inferences in favor of plaintiffs
also, in favor of defendant for whom service has not been requested within 90 days, unless good cause shown. for this defendant, interruption of prescription considered never to have occurred.
also, if plaintiff fails to appear at trial
plaintiff has the right to a jury trial except
if there is no claim that rises to level of $50k
suits against a political subdivision (ie, city), but jury trials are allowed against the state.
**when to request jury trial
request must be made within 10 days of the filing of any pleading that raises an issue triable by jury
OR
within 10 days of the withdrawal of the other party’s request for trial by jury
2 types of challenges to a juror’s suitability to be selected
peremptory challenges
challenges for cause
peremptory challenges
if 12 member jury, get 6 peremptory challenges, up to 4 additional if multiple parties
if 6 member jury, get 3 peremptory challenges, up to 2 additional if multiple parties
peremptory challenge definition
a challenge to a juror that you can make without stating why you don’t want the juror, as long as not on any constitutionally impermissible basis
juror challenges for cause reasons
(1) lack legal qualifications
(2) juror has formed an opinion or is otherwise not impartial
(3) relations between juror and party or attorney would influence juror
(4) juror has been on a jury of a case with similar facts
(5) if the juror takes the 5th amendment on voir dire
time period for peremptory challenge
can be made up to the time the jury haas been accepted and sworn
challenges for cause time period
can be issued up to the time of taking of evidence
judge’s commentary in front of jury
cannot comment on the facts
can instruct jury throughout the trial
must instruct the jury on the law after the trial
during deliberations, jury has right to review evidence - specific rules
they may see any physical object or evidence brought to jury room
if they want to hear testimony again, they will be brought to the courtroom and that testimony transcript will be read to them
jury instructions
party may file written request for jury instructions
court must reduce instructions and charges to writing
juror’s actions
can take notes, can use during deliberations
not preserved for appeal, destroyed after verdict
jury size & jurors needed for verdict
juries are usually 12 people, then need 9 jurors for verdict
if 6 person verdict, then 5 jurors for verdict
directed verdict
in a jury trial, either party can make a motion for directed verdict
must state grounds on which motion based
standard = the facts and inferences are so overwhelmingly in favor of the moving party that reasonable persons could not reach a contrary verdict
*judgement not withstanding the verdict time period and standard
time period = filed within 7 days, exclusive of holidays, from the mailing or notice of the signing of judgement
standard for granting = after considering all the evidence in the light most favorable to the non-moving party, if the facts and inferences so strongly and overwhelmingly favor one party that reasonable persons could not reach a contrary result
hypo: if damage award from trial is clearly excessive or clearly inadequate, and the court could hold a new trial on damages alone (ie, severable), then court can =
court can enter remittitur to reduce damages
court can enter additur to increase damages
court must ask consent from impacted party as an alternative to granting new trial on damages alone
appeal of reformed judgement is allowed if party disagrees with court’s calculation of damages
special verdict form
in which court submits written questions to jury
if tort case, then special verdict form must have questions regarding fault, cause, comparable fault, damages in dollars
general verdict form
court submits interrogatories about findings of facts necessary to verdict
along with general verdict forms
if fact answers are internally inconsistent, new trial or ask jury to reconsider
interlocutory judgment definition
an interlocutory judgment does not determine the merits
final judgment amendments
allowed only to correct errors of calculation or alter phraseology
not to alter the substance
partial final judgments that are immediately appealable
are those rendered with finality by the court even though all the issues have not been adjudicated when:
court dismisses suit as to less than all parties
grants motion for judgment on the pleadings
grants motion for summary judgment
hypo: if court dismisses suit as to less than all the parties, could be motion for summary judgment, etc
then that is a partial final judgment and is immediately appealable
findings of fact and reasons for judgment in non-jury cases
the court must issue written findings of fact and reasons for judgment when requested by party to do so within 1 0 days of notice of judgment
after jury trial, court must prepare and sign a judgment in accordance with the verdict
within 10 days of verdict
after compromise reached between parties, and recited into records
court may order counsel to prepare and submit a judgment within 20 days of recital
declaratory judgments
type of final judgment
used to determine rights of parties before contract has been breached
3 grounds for motion for a new trial
(1) a verdict is clearly contrary to law and evidence
(2) discovery of new evidence which could not have been discovered with due diligence before or during trial
(3) when a juror is bribed or compromised
motion for new trial timing and standard
must be filed within 7 days from mailing or service o f signing of judgment
judge may evaluate all evidence without favoring either party
two types of action of nullity
annulment for vices of form
annulment for vices of substance
annulment for vices of form rule
final judgment shall be annulled if rendered by incompetent person;
against someone improperly served;
against someone against whom valid default judgment wasnt properly entered;
or rendered by court lacking SMJ
timing: may be brought at any time
may be asserted collaterally, ie, on appeal
exception: if defendant who voluntarily acquiesced to judgment cannot so move
hypo: default judgment was issued without waiting the full 2 days
move for annulment of judgment for vices of form
annulment for vices of substance
final judgment obtained by fraud or ill practices may be annulled
timing: must be brought within 1 year from discovery
must be asserted directly, not collaterally (on appeal)
hypo: suit filed with a bunch of disparate actions alleged by different plaintiff suing one defendant. what does attorney do?
file dilatory exception for improper cumulation of actions
term for motion to increase damages without new trial
motion for additur
if you do want a new trial on damages, what do you file?
motion for new trial on issue of quantum
in order for judge to issue additur as alternative to new trial, parties must do what?
consent
