Civ Pro Yeazell SP 2004 4

8/10/2019 Civ Pro Yeazell SP 2004 4

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Incentives to Litigate:

Litigation facts:

98% of civil litigation is in state courts 3/5 traffic/ordinance violations because most traffic related most are in state courts because states maintain

roadways. nly way fed court would !ear a traffic case if it is a diversity case "no#$ over traffic related issues&

out of non'traffic cases: ()% civil lawsuits* 39% criminal

amout of civil litigation is +ositively correlated w/ ++l , ecnomic activity.

-s most common form of civil lawsuits

rial facts:

orts /3rdof civil trials "even t!oug! less t!an !alf of t!e filings& $ost - cases tried to 0udge "about )8 mont!s till 0udgment& 1% of t!e time +laintiff wins

$ost tort cases tried to 0ury "about mont!s till 0udgment& (9% of time +laintiff wins

+laintiffs recover 2'figure sums in less t!an 5% of cases

$ost civil cases end before trial.

4 many will end wit! a 0udicial decision "sufficiency of +leadings discoveryissues # '' even t!oug! t!ere is no trial&.

!ese rulings are case'ending "dis+ositive& in about )/3 of cases. 6ontem+orary litigation mainly is t!e +retrial +rocess. $ost cases end in ambiguous manner 7 settlement or abandoment.

Im+ortant relations!i+ between:7 Incentives to litigate 77 costs of litigation 7 7 merits of t!e claim 7

!y Litigate;

Litigation can offer two remedies:

#+ecific remedies: t!ose t!at re+lace directly w!at t!e +laintiff lost #ubsitutionary remedies: reasonable substitute for w!at t!e +laintiff lost emedies:

#ome +robs wit! substitutional remedies:

?ifficult to +ut a +rice on non'economic damages "usually 3@s economic for +ain ,

suffering& Aasier to ascertain damages w!en t!ere is mar=et for it.

#olutions to difficulty in calculating com+ensatory damages:

6ontractual ' agree to liBuidated damages for breac! of - "can only do t!is if itwould be difficult to calculate actual damages&

#tatutory damages "fi@ed +rices for actual damages* or sets min/ma@&

Cunitive damages: because goal is to +unis! t!e wrongdoer in some 0uris can introduce

evidence on ?Ds net wort! '' in order to gauge t!e +unis!ment amt accodingly.


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!ese are rare ' only in 1% of cases t!at go to 0udgment wit! median award E5FFFF.

Cunitives , #tate Garm: e@cessive +unitive damages can be a violation of due +rocess"unlaw ta=ing of oneDs ++ty&:

Cunitive damages goals of retribution and deterrence "similar to criminal law& but in

t!e civil law conte@t ?s donDt !ave t!e same +rotections ' and t!is is a concern... #6 suggests +unitives s!ould be in a single'digit ratio to com+ensatory damages.

ut for e@tremely egregious conduct can be more. Hlso if low com+en damages may be more* conversely if !ig! com+en may be less.

Interesting note in t!is +articular case t!e court was concerned t!at t!e +unitivies were

based on out'of'state conduct w!ic! court said effectively +unis!ed ? for conductoutside of t!e stateDs 0uris.

6ourt notes t!at a ?Ds great wealt! cannot 0ustify an ot!erwise unconstitutional

+unitive damages awardJ Gor t!e 0uris t!at allow evidence of wealt! many lawyers say t!is is a +owerful tool.

Im+lications 7 w!ile not a brig!t line rule t!is may ma=e some 0uries award in t!e

outer limits of t!e single'digit ratio w!en maybe t!ey would !ave done less. i.e. if +rosecution urges t!is as a multi+les ' com+en damages @ 9 "note current stats

s!ow median amounts usually ):)& ma=es +untivies not as scary for ?s ' +rovides more certainty +er!a+s greater

bargaining +ower. $ay call for greater +roof/su++ort of com+ensatory damages since t!at establis!es

t!e baseline for +unitives.

Kote t!at a !ig! +ro+ortion of damage awards comes in a very small number of trials.

#tate Garm may be +owerful in reducing t!e very occasional but very !ig! awards.

ecause even one really out of +ro+ortion award can count for a number of awardsby nine "counters arg t!at would increase +unitive damage awards&

uidelines:

#ubstantive ?C "t!e ends&: 9:) +resum+tive ma@imum Crocedural ?C "t!e means&: H++ellate review '' ensure +unitives based on

a++lication of lawJ rat!er t!an decisionma=erDs ca+rice.

a=eaway: #tate Garm ma=es +untives a constitutional issue because +ossible

substantive due +rocess violation "i.e. not t!at somet!ing was done wrong but t!at you0ust canDt do t!is& In effect ma=es every case in t!e 4# sub0ect to t!e due +rocessclause of t!e const "relations!i+ to fed #$;&

#+ecific >emedies:

#+ecific +erformance 7 ma=e +arty +erform obligation A0ectment 7 order for removal

>e+levin 7 act to recover +ersonal ++ty

In0unctions 7 court orders commanding a +art y to do or sto+ doing somet!ing "can be

narrow s+ecific&.


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e.g.s. restraining order sc!ool desegregation etc.

$andamus 7 order from a++ellate court to lower court to do somet!ing.

Mabeas cor+us 7 order to someone =ee+ing anot!er +erson in custoy as to e@+lain w!y

!olding !im or let !im go "usually c!ild custody conte@t&.

#ome t!in= t!at legal remedies are +referred to eBuitable remedies "may reBuire +arty

to s!ow somet!ing more to get eBuitable remedy&. o get eBuitable remedy "usually in0uction& some courts reBuire t!at t!e legal remedy is

inadeBuate or in ot!er words CDs !arm is irre+arable "money damages will not beadeBuate&

#igma 6!emical v. Marris "+. 55&

? wor=ed for C in !is - said !e wouldnDt wor= for a com+etitor for yrs after leaving

and would not disclose trade secreets.

Issue: w!et!er granting +ermanent in0uctive relief is a++ro+riate

Test: two factors: inadequacy of legal remedy & balance hardships of two parties

if injunction is granted And result after a++eal: ? could wor= for com+etitor but not in +osition w!ere !is

=nowledge of CDs com+any was to be utiliNiced and could not divulge trade secrets. Kote t!at t!is could be +otentially difficult to enforce "!ard to +rove !eDs vioalating

it& ' relatedly it would be difficult to ascertain damages for w!at ? !as already done"i.e. w!at !e may !ave already told&.

Kote cases see=ing solely eBuitable relief are tried by 4?A#.

Strategy with choosing desired remedy if desire or dont want a bench trial.

#+ecific #ubstitutionary

Legal >e+levinA0ectement$andamusMabeus

?amages

ABuitable In0uction>eformation>escissionOuiet title

6lean u+Hccounting of t!e ?6onsructive trust

?eclaratory >elief: Pnot discussed in lec* but confusingQR

F) , F establis! t!at a +arty can see= a declaration of t!eir rig!ts wit!out

see=ing relief "li=e damages or in0unction&. >ule 52 says decl 0udgment done according to t!e >ules and t!e rig!t to trial by 0ury

may be a++ro+riate. ?oesnDt matter if t!ere is anot!er adeBuate remedy. 6ourt may offer a s+eedy !earing "advance on t!e calendar&

?oes not involve !y+ot!etical Buestions must be an actual controversy "t!oug! diff is

of degree&.

Kote decl relief can raise 0uris +robs.

ell'+leaded com+laint rule vs. reBuirements of fed 0uris.


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ecause decl relief does not fit well wit! idea of well +leaded com+laint rule. >evisit +. 58

Kon0uris issue: unclear w!o bears t!e burden of +roduction and burden of +ersuasion.

CHSIKG>LIIHIK

?is+utes about facts are more e@+ensive t!an dis+utes about t!e law. Largely because of costs for discovery e@+erts.

In Hmerican system +arties +ay t!eir own costs "contrast wit! Anglis! system w!ere

loser +ays all&. !is enables ++l to bring less t!an certain claims ' becaues not as muc!of a ris=. Claintiffs "contingent fee* by +arty fee s!ifting by - or by statute +ublic funded& ?efendants "insurance by +arty +ublic funded&

Httny fees are usually done by !our "contract cases& flat fee "+redictable wor=& or

contingent fee "tort cases&. Kote contigent fee system only ma=es sense w!en t!ere are ?H$HA#. Aac! !as its +itfalls. Mourly ' attny may s+end more time t!an necessary on t!e case. 6ontingent fee ' attny will screen cases diff !as interest in minimiNing t!e number

of unsuccessful clients and will !ave incentive to ma@imimiNe !er +rofit wit!regards to all !er cases "two ways: large inventory of cases wit! varying merit*small inventory of carefully screened cases&.

6ost s+reading: contigent fees and insurance dis+erses costs of any one lawsuit to a

grou+ of litigants* +ublic subsidies s+read costs to everyone.

!e system leaves two main grou+s wi!out access to re+resentation:

C+l wit! small claims C+l see=ing non'monetary relief in non'fee s!ift cases

"!oldover tenants divorce/c!ild custody domestic ' e.g. restraining order& C+l w!o wonDt get sued: udgment +roof +arties* insolvent defendants

C+l w!o are uninsured w!o will still end u+ getting sued divorce/custody* !oldover tenants

Gor ++l wit!out E '

+ublicly funded legal !el+ is available rings u+ interesting issue '' of +ublicly funded lawyers bringing suit Buestioning

e@isting +olitical order "some legis +ro!ibits suc! lawywers from suting state/localgovs&

Cro bono wor= "avoids some restrictions on ability to sue gov&

rganiNations wit! agenda for social c!ange Kote t!at every lawsuit receives some +ublic subsidy "e.g. salaries for 0udges

electricity etc& rials are most e@+ensive

Gee s!ifting:

>ules +rovides for some cost s!ifting:


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>ule 5( allows court to ma=e losing +arty +ay court costs* attny fees can be grantedif made by motion.

)9F +rovides t!e costs t!at a court can ta@: mainly adminstrative costs "+rinting

+aying for court re+orter fees for witnesses doc=et fees etc& ' a bill of t!ese costsare filed wit! ease case and can be included in t!e 0udgment.

Gee s!ifting statutes "started wit! civil rig!ts to encourage ++l to bring suit& 6ommon funds for t!ings li=e class actions: reBuires all w!o benefit from a 0udgment

to s!are t!e costs. #imilarly situated ++l s!are costs rat!er t!an s!fiting t!em to t!eo++osing +arty.

y - '' +arties may !ave - tt!at if litigation !a++ens loser +ays winnerDs legal ffees.

$alicious +rosecution 7 can result in attny fees for ?.

y statute: fed , state statutes s!ift fees in certain categories of cases.

4sually matters in t!e +ublic interest.

$ost im+ civil rig!ts:

42 USC )988"b&: court may allow +revailing a+arty ot!er t!an t!e 4#J to

recover reasonable attny fees. +revailing +artyJ !as broug!t u+ some Buestions #6 decided KLS a++lies to +revailing +laintiffs not ?s due to legis intent to

encourage ++l to bring suc! suits. A@ce+tion is t!at ? could recover for malicious+rosecution.

does not +revent +arties from negotiating a fee waiver "eff ?& does not include recovery for fees if ? voluntary c!anges conduct due to t!e lawsuit

"uc!annon oard& note t!ese limitations on w!at is a +revailing +artyJ can +otentially !inder access to

re+resentation "lawyers refusing to ta=e claim& and may ma=e let ? esca+e statutoryobligation "by voluntarily c!anging& but #6 !as considered t!ese on t!e w!ole anddetermined t!ey do not go against legis intent for fee s!ifting and suc! !arms arelargely s+eculative/marginal. 6ourt noted t!at voluntary c!ange ending suit only occurs in eBuitable relief not

suit for damages.

6ivil litigation: 8 4#6 ()"d&")&"H&: allows courts to award fees to +arty

+revailing against t!e 4# unless t!e govDs +osition was substantially 0ustified or statute+ro!ibits it.

Avans v. eff ?

6lass action suit for disable c!ildren ? offered genereous settlement t!at gave C w!at

it as=ed for 4 added a waiver of attny fees.

CDs lawyer instructed to acce+t but t!en contested t!e waiver. >ule 3"e& reBuires courts to a++rove terms of any settlement of a class action ' said

t!at t!is +rovision was an et!ical breac!.

#6 disagreed said waiver was o=ay.

Legis did not intent to +revent negotatied waive of fees Gees Hct was a +owerful tool for +laintiffs may !ave motivated ?Ds generous offer

but +reventing suc! negotiation was not w/in +ur+ose of t!e Gees Hct.

#6 disagreed wit! CDs claim t!at !e faced an et!ical delimma.


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7/41

+rovisional remedies 7 relief +ending final ad0udication of t!e dis+ute

granted or denied befor t!e case !as been !eard on t!e merits t!us based onincom+lete info. Mow s!ould a court decide w!et!er to grant relief;

!en does curtailment of t!e regular +rocedures amount to denial of due +rocess;

?elimma 7 not granting +rom+t relief resulting in +laintiffDs loss t!at no later remedycan restore vs. defendantDs loss of !is rig!ts t!at no later remedy can restore.

>elief from to+ to bottom:

Ginal in0unctive relief "after trial& Creliminary in0uction "after hearing before trial& em+orary restraining order ">& "+ending !earing on +relim in0unction& A@ +arte > "w/out notice& given in instances w!ere t!ere is a serious t!reat of

in0ury if notice is given "e.g. domestic violence& or w!en no time to sc!edule!earing "e.g. endangered s+ecies 0ust found in area to be demolis!ed&

Kote > is in0unctive eBuivalent of a seiNure wit!out a !earing "+. 9&

>ules at wor=:

)9"a&")& establis!es t!at a +laintiff can a++eal from an interlocutory order...

granting continuing modifying refusing or dissolving in0uctions or refusing todissolve or modify in0unctionsJ '' +reliminary in0unctions are in0unctionsJ !ere t!is is an e@ce+tion to a++eals can only be made after final 0udgments ")9)&

>ule 15:

15"a&: allows for +ossibility to +us! t!e actual trial u+ after reBuest for +relimin0unction.

15"b&: tem+orary restraining order may be granted IM4 KI6A "written ororal to adverse +arty/attny& only if: s+ecific facts s!ow a++licant will suffer immediate and irre+arable in0uryJ before

adverse +arty can be !eard. a++licantUs attny certifies in writing t!e reasons w!y notice s!ould not be reBuired.

once granted !earing is set for earliest +ossible time and given +riority.

at !earing t!e a++licant will +roceed wit! reBuest for +relim in0unction or > is

dissolved. informal notice w!ic! may be given to t!e attny rat!er t!an t!e adverse +arty is

+referred to no notice at all. 15"c&: H++licant see=ing +rovisional remedy must +ost bond suc! t!at if t!e adverse

+arty ends u+ +revailing it can recover t!is amount.

Im+lications:

?ecisions on +reliminary in0uctions as a +ractial matter will usually end case.

t!er +arties besides t!e two involved in litigation can be affected by erroneouslygranted in0unctions "e.g. in illiam if in0unction !ad been erroneously granted ' all++l w!o !ad to buy bread at !ig!er +rice&.

ension between urgent need for action v. ensuring +arties get due +rocess

illiam Inglis , #ons a=ing "+. 8&:

C soug!t +relim in0uction and was denied.


8/41

4nder )9"a&")& a++ealed t!is order.

H++eals court e@amind for w!et!er: erroenous legal +remise or abuse in discretion

?etermined abuse in discretion:

rail court !ad a++lied test: C will suffer irre+arable in0ury if not granted* C will +robably +revail* ? not

!armed more t!an C will be !el+ed* granting is in t!e +ublic interest. ut did not a++ly t!e alternative test: If !arm to C is sufficiently serious 7 only need to be fair c!ance of success on t!e

merits. !is effectively ma=es it so if !ards!i+ is es+ecially great softens reBuirement of

!ow li=ely !e is to +revail.

Crovisional >emedies , ?ue Crocess:

wo =inds of due +rocess:

#ubstantive due +rocess: some t!ings you 0ust canDt do "6am+bell& Crocedrual due +rocess: must follow certain +rocedures "Guentes&

Guentes v #!evin "+. 81&

Ht issue: state laws aut!oriNing t!e summary seiNure of ++ty under a re+levin claim

u+on a++lication of +erson claiming rig!t to t!e ++ty and +osting bond. does not reBuire notice to +ossessor of t!e ++ty does not +rovide +ossessor an o++tny to c!allenge t!e seiNure at a +rior !earing

under 14thbecause state official doing the seizing (need more than just it being state

law)

?ue +rocess reBuires t!at a +erson be given t!e rig!t to notice and an o++tny to be

!eard in a meaningful time and in a meaningful mannerJ

#6 for notice and o++tny to serve its full +ur+ose must be granted w!en t!ede+rivation can still be +revented. ?ue +rocess allows some fle@ibility in t!e form of t!e !earing according to t!e

nature of t!e case. BUT whateer its form hearing needs to be before depriation unless

!"T#$%#'($#) situtions where go interest justifies the postponment.

>eally w!ere gov initiNes seuiNure t!at is directly necessary to secure an im+

governmental or general +ublic interest "e.g. seiNure for national war effort& #6 said any significant ta=ing of ++ty violated d+c even if tem+orary. Lengt!/severity of de+rivation factor for considering a++ro+riate form of !earing

but does not 0ustify denial to a +rior !earing of #$A =ind.

Laws unconstitutional because t!ey deny t!e +ossessorDs rig!t to a +rior o++tny to be!eard before ++ty is ta=en. Issue now is w!at ty+e of !earing is sufficient to establis! t!e o++tny to be !eard;

Hfter Guentes:

#6 !as stated factor test for w!et!er fundamental reBuirement of due +rocess '' t!e

o++tny to be !eard at a meaningful time in a meaningful manner '' !as been met: )& +rivate interest affected by t!e official action* & ris= of errorenous de+rivation of

suc! interest t!roug! t!e +rocedures used and +robable value if any of


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additonal/substitute +rocedural safeguards* 3& t!e govDs interest in t!e functioninvolved and t!e fiscal/admininstrative burdens t!at t!e additional/substitute+rocedural reBuirements would entail.

H++lied: Colice tows car w/out !earing:

)& can say big ++ty interest* & unli=ely additonal +rocess will +revent errors 'eit!er legally +ar=ed or not* 3& e@treme financial and adminstrative burden.

attered s+ouse see=s e@ +arte >: )& feedom of movement/association +retty big* & significant +ossibility t!at a

!earing would uncover a mista=e or sort t!ings out* 3& M4A gov interest in+reventing violence.

V3 overw!elms t!e ot!er factors. 6ourts usually grant e@ +arte >s wit! s!ort

delay for !earing "3 days&.

CLAH?IK

transformed over time... from: formulas of t!e writs at issue "e@cessively cursory& factsJ of t!e cause of action "e@cessively detailed ' 0ust t!e facts& some states still go by t!is e.g. statement of t!e facts constituting t!e cause of

action in ordinary and consice languge... a demand for 0udgment for t!e relief tow!ic! +arty claims !e is entitledJ "+. 99&


10/41

Learn as muc! as we can at t!e start of t!e case in order to weed out wea= casesc!ea+ly and early.

Aliminate tec!nical barriers to cases t!at will be meriotorious wit! futuredevelo+ment "i.e. discovery&. ?onDt want to weed out a +otential meritorious claim too early.

!e second goal is better fulfilled it screens out only t!ose cases w!ere +leader lac=slegal basis for claim allows facts to be screened out later. < consistent w/ Buestions of law being faster/c!ea+er t!an Buestions of fact

Maddle v. arrison "+. 3F2&

C sued ?s for cons+iracy under federal civil rig!ts law t!at made it unlawful to

intimidate someone w!o was to a++ear in federal court. this is how he got into fed court - conspiracy claim - a regular wrongful discharge

claim would have been state claim - and here there was no complete diversity.

C claimed in0ury to !is ++tyJ '' t!e loss of !is 0ob.

? moved for )"b&"1& because under +recedent case at'will em+loyment not ++ty "C

conceded t!at !e was an at'will em+loyee&. $otion granted.

a=eaway: t!e dismissal was granted soley because of a matter of law '' did not

de+end on factual matters "i.e. w!et!er C was fired in retaliation for !is testimony&. 6ourt assumed t!e facts were true and loo=ed to w!et!er it would be a claim under

t!e body of law invo=ed by t!e com+laint.

Kote #6 granted certorari after C lost a++eal on t!e issue of:

!et!er C can state a claim for damages by alleged cons+iary caused !is at'willem+loyment to be terminated.

#6 decided t!at t!oug! at'will em+loyment is not +ro+ertyJ for +ur+oses of due+rocess t!ird'+arty intference wit! at'will em+loyment constitutes in0ury of +ersonor ++ty under t!e fed statute at issue.

AMI6HLLI$IHIK#CLAH?IK...

A@+loring >ule )):>eading >ule )) as #tatute

Cur+ose: w!y;

?eter un0ustified litigation +ossibilities.

#co+e: w!atDs covered w!atDs not;

nly signed documents e@cluding discovery

If it regards discovery a++lies to diff ruleW see 1"g& #co+e does not include saying somet!ing "not signed document&. If false statement made maybe violate ot!er rule but not rule )).

Hddresee:

#igners of documents "and by e@tension t!ose w!o su++ly t!em wit! info& !is is addressed to lawyers unre+resented +arties law firms and in some

instances t!e client.


11/41

My+o: client tells lawyer story lawyer ends u+ filing a claim later turns out to befalse. !o is liable under rule )); Laywer if could !ave been found by reasonable inBuiry.

6lient may be liable too "some courts !ave sactioned clients&.

4sually if client !as given false re+resentation and attny not in good +ositoin to

=now client was doing so. 6ommand: commands w!at;

#ee "a& "b&")&'"3&

A@ce+tions: any outs;

#ome wiggle room in "b& #afe !arbor "c&")&"H& "c&"&"H& Ina++licable to discovery "d&

6onseBuences: w!at if s!e/!e doesnDt;

#anctions "c&

al=er v. Korwest 6or+ "+. 3F&

C filed a case in federal court asserting #$ by diversity. CDs com+liant merely noted t!at one of multi+le defendants was of diff state but

failed to allege t!e citNens!i+ of t!e ot!er defendants. In fact t!ere was nocom+lete diversity.

))"b&"& was violated CDs attny did not a resonble inBuiry into t!e citiNens!i+ of t!edefendants even t!oug! it was CDs burden to +lead t!e citiNens!i+ of t!e +arties sinceit was invo=ing diversity 0uris.

? moved for a motion to dimiss ")"b&")& lac= of 0uris& and made motion for awardof sanctions. !oug! note in t!is case it is unclear w!et!er ? com+lied w/ +rocedure for ma=ing

suc! a motion under >ule"c&")&"H&. !y reBuest for sanctions; $aybe to send strong message to litigator for !is incom+entence.

6!ristian v. $attell "+. 3(&

C filed a case for co+yrig!t infringement for a doll s!e created against $attel. !oug! $attel !ad a co+yrig!t t!at +redated CDs co+yrig!t by 1 years.

))"b&"3& was violated failure to ma=e reasonable inBuiry "t!e info was on t!e bac=of arbieDs !eadQ&

!y reBuest for sanctions; Li=ely to send a message to ot!er ++l w!o will try to sue $attel.

Kote t!at in t!is case t!e sactions were reversed by a++eals court for furt!er inBuirybecause t!e district court listed a w!ole bunc! of 6!ristianDs egregious be!avior t!at0ustified sactions 4 not all of it was w/in t!e sco+e of t!e >ule "included conductin de+ositions disovery meetins of counsel oral re+resentations at !earings& '' t!ustrial court did not ma=e an e@+licit finding t!at counselDs conduct constituted badfait! in regards to t!e >ule. asically a++eals court said it is unclear w!et!er sanctions were granted as a result

of be!avior covered under >ule )) or be!avior outside its sco+e.


12/41

#CA6IGI6IS>AO4I>A?IK6A>HIKCLAH?IK

#tradford v. Xuric! Insurance 6o. "+. 38&

C dentist sued ? insurer for un+aid +olicy +ayment.

? counter'claimed fraud. C moved for dismissal of counterclaims for failure to state s+ecificy under >ule 9"b&.

6ourt granted leave to amend '' under >ule )5"a& '' because it was fi@able ? merely

!ad to add t!at t!e incident C was trying to recover for under !is +olicy occurred at attime w!en !e +ermitted t!e +olicy to la+se and t!at !e mis+resented t!e date of t!eincident to bring it w/in t!e coverage +eriod.

Kote t!at t!is issue of fraud was broug!t in a counterclaim but t!at ? could !ave 0ust

+leaded issue of fraud as an affirmative defense '' under 8"c&.

#trategy: a fraud claim may evo=e sym+at!y ' +aints +laintiff as underserving

Kote t!at ?Ds original counter'claim would !ave sufficed under >ule 8 as anordinary +leading.J 4 more s+ecificy is reBuired for somet!ing li=e a fraudclaim because of t!e increased severity of w!at is at sta=e '' now t!ere is +untiivedamages at sta=e. Kote t!at a more generaliNed statement of a fraud claim loo=s a lotli=e a contracts claim. #o if t!e >ules didnDt demand more s+ecificty every contractclaim could be seen as a +untive damage action w!ic! would result in drasticallydifferent consBuences.

Kote t!at t!is is des+ite t!e 0ustification given in omeN !ere C !as to +leads+ecificity regarding ? concealing somet!ing "even t!oug! ? !as t!e bestaccess/=nowledge&.

#+ecifiy issues:

If a +laintiff ma=es a +leading too s+ecific "e.g. lists ( s+ecific ty+es of disrminatory

be!avior by defendant no generaliNed allegations in a civil rig!ts suit&. ? wis!ing to get rid of t!e suit w/ minimum e@+ense and +ublicity c!anges t!e (

s+ecific c!arges and t!e case is moot. !is is uc=!annon oard if +laintiff was only see=ing in0unctive relief and not

damages case is over and no ability to get attny fees under fee's!ifting statutesince no 0udicially enforced 0udgment.

#+ecific does not eBual long.

#ome statutes forbid certain =inds of s+ecificity in +leading "e.g. in 6H canDt s+ecify a

damage demand in +ersonal in0ury com+laint '' concern for ? fainting/!aving !eartattac=&

6ivil rig!ts is an area w!ere t!ere was a battle about s+ecificty. #6 !as re0ected !eig!tened +leading standards for civil rig!ts claims.

urden of Cleading

urden of +leading 7 +arty must allege t!at element of t!e claim or defense not t!e

res+onsibility of t!e ot!er +arty to do so.

urden of +roduction 7 at trial +arty must +roduce sufficient evidence t!at tends to

demonstrate t!e element is met.


13/41

urden of +ersuasion 7 t!e standard by w!ic! t!e +arty must convince t!e trier of fact

t!at oneDs version of t!e facts in regards to t!e element is met.

4sually t!e t!ree go toget!er. Gor a given element a +arty will carry all t!ree

burdens. ut t!is isnDt always t!e case.

omeN v. oledo: #6 granted certorari on w!et!er in an ( 4.#.6 )983 claim a +laintiff must allege

t!e official !as acted in bad fait! in order to state a claim for relief or w!et!er t!edefendnat must +lead good fait! as an affirmtaive defense. i.e. w!o !as t!e burden of +leading Bualified immunity;

#6 said Bualified immunity is an affirmative defense t!us burden of +leading rests

wit! t!e defendant. ustified doing so because w!et!er or not defendant acted in good'fait! "t!us gets

Bualified immunity& de+ends on facts w/in t!e =nowledge and control of ?.

#trategy: w!y did C bring t!is all t!e way u+ to t!e #6; Me could !ave 0ust added t!e

good'fait! +art in !is +leading on leave to amend.

< C li=ely wanted to resist conceding t!at !e !ad t!e burden of +leading Bualifiedimmunity for fear t!at it would mean !e !ad burden of +roving it as well "i.e. burdenof +roducing and +ersuading&.

Kote t!at for some affirmative defenses "statute of frauds , s.o.l. & '' t!e basis for t!e

affirmative defense is clear from t!e com+laint. In t!ese cases C may be reBuired tonegate t!is defense by including an additional allegegation suc! as fraud esto++el orwaiver.

!e two versions and w!at would !ave to be s!own:

CDs version:

6om+laint: #tate action Tiolation of constitutional rig!ts In0ury

Hnswer

?enial ood fait! as affirmative defense

?Ds version

6om+laint #tate action Tiolation of con. rig!ts ad fait! In0ury

Hnswer

denial

>A#CK?IKMA6$CLHIK

Ko res+onse

ill result in default 0udgment.

*#!$(S+!# ,%T'%(S: reBuests for t!e court to do somet!ing ta=e a ste+ "e.g.dimiss t!e case&

6onseBuences:

?elay of answer w!ile court decides t!e issue raised by t!e motion. ?onDt !ave to atually res+ond to answers in com+laint until +re'answer motion is

addressed.

Kote: motions ta=e K C#IIK on t!e trut!/falsity of CDs allegations.


14/41

Creanswer motions gives ? t!e +ossibility to get t!e claim dismissed rig!t away "or at

least a delay&. $otions !aving not!ing to do wit! t!e claim itself w!y claim s!ould not +roceed. )"b&")&: lac= of sub0 matter 0uris "Maw=ins&

Aven if com+laint is true doesnDt matter failure to state a claim u+on w!ic! relief

can be granted "i.e. under substantive law no rig!t to relief& e.g. ? made face at C.

but wouldnDt t!is not occur wit! out a >ule )) violation;

)"b&"1&: ridges v. ?iesel "no claim allowed till t!roug! trying admin remedies&

!e com+laint is too vague confused or com+licated )"e&: ell v. Kovic=

$(S+!#:res+onds to t!e allegations of t!e com+laint

6onseBuences:

6ase +roceeds....

?eny t!e trut! of one or more of t!e allegeations or may deny until more info is found

'' y >ule 8"b& 4nder t!is >ule can ma=e a good'fait! general denial of all averments t!oug! raret!at ? can deny eac! and every allegation in good fait! note, thin! if was such a case " could ma!e a 1#(b)($) motion or "%s attny

possibly violating &ule 11(b). 'lso if wrongfully asserts a general denial he

could be subject to &ule 11.

Hssert additional matters t!at will com+letely or +artially defeat CDs claim.

Hffirmative defenses ' y >ule 8"c& '' t!ings li=e s.o.l. contributory neg.

Hny allegation t!at is not denied is ta=en as H?$IA?.

y >ule 8"d&

!ese are t!e +ossible res+onses "generally& to t!e com+laint.

Kote ? can utiliNe multi+le res+onses. If ? wants to ma=e !is K claims:

6ounterclaim against C 6ross'claim against anot!er ? !ird'+arty claim against a new +arty

#trategy:

Cre'answer motions are attractive because t!ey can +otentially end t!e case early and

before great costs are incucrred "because rely on very limited factual investigation orno factual investigation at all&. Hlso can bide ? more time....

!at a motion usually consists of:

!e reBuest itself Kotice to t!e o++osing +arty w!en t!e motion will be!eard Hffidavits if a++ro+riate "swon statement t!at a +erson !as obseved certain facts& H memo w/ reference to t!e facts and su++orting aut!orities t!e basis for t!e motion. $any attnyDs include +ro+osed orderJ doc t!e 0udge can sign if s!e grants motion.

6onsBuences of ma=ing a >ule ) motion ''


15/41

o +revent defendants abusing motions to 0ust delay litigation >ule )"g&'"!& +rovides conseBuences. $ust consolidate certain defenses/ob0ections if ma=ing a motion: )"b&"&'"5& must be consolidated wit! motion or t!ey are HITA?.

but t!e more substantial defenses: lac= of #$ failure to 0oin failure to state

claim are not waived if not 0oined. If ? does not ma=e +re'answer motion for a defense/ob0ection !e can still after t!e

+leadings are closed ma=e a motion for a 0udgment on t!e +leadings )"c&.

Creliminary !earings...

Hny )"b& defense w!et!er made by motion or included in +leadings and motion for0udmgnet on +leadings )"c& will be !ard and determiend AG>A trial unless t!ecourt orders !earing/determination be +ost+oned until after t!e trial.

Cre'answer motion '' motion to stri=e )"f&

)"f& can act li=e a )"b&"1& for a s+ecific allegation:

e.g. C see=s +unitive damages but +unitives not recoverable for t!e ty+e of claim !e

brings. redundant immaterial im+ertinent or scandalous matterJ

info t!at is confusing e@cessively deragotry info etc. note suc! motions are not favored as t!ey are seen as a waste of time. >eally only a++ro+ro+riate if t!ey will +re0udce t!e morinv +arty.

A@am+le ' ?enial:Xielins=i v. C!iladel+!ia Ciers Inc.

C sued ? A> of wor=er w!o in0ured !im.

5 of CDs com+laint stated: a motor'driven ve!icle owned o+erated and controlled by

?W its agentsW as so negligently and carelessly managedWJ

? denied 5.

C t!oug!t it was denying t!e liability +art but ? was denying t!e owned and o+erated

+art.J

?own t!e line it became clear C sued t!e wrong +erson 4 by t!at time s.o.l. !ad run.

ote, this was before 1*(c)(+) -- today could have amended to change name of .

y not s+ecifically denying t!e +ertinent allegations ' as reBuired in 8"b& '' ?

+revented C from using t!e correct ?.ote, that "%s attny could also be said to be at fault by the way he clumpted these

allegations stogether.

!e court made it so ? !ad to admit t!e sections of 5 notwit!standing t!e liability

+art "t!at it owned t!e for=lift and t!at t!e agent !andling it was an em+loy of t!e ?&even t!oug! t!is wasnDt actually true. #ince t!e same insurance co+many was re+resening t!e orignal ? and t!e correctJ

? t!ere was no +re0udice to ?. ustified on eBuitable esto++el +rinci+els.

a=eaway: t!e com+laint and t!e answer s!ould be written in a clear manner so t!e real

issues dis+uted are clear. #+ecificity is im+ortant.


16/41

Layman v. #out!western ell ele+!one 6o "+. 3(8&

C sued ? for tres+assing and installing tele+!one lines t!at decreased !er ++ty value.

? made general denial of !er com+laint and later soug!t to introduce evidence t!at

t!at t!ey !ad rig!t to enter land because of an easement.

6ourt said trial court s!ould not !ave allowed evidence of t!e easement because ?

s!ould !ave indicated it as an affirmative defense. >eading Layman sensibly:

If C was atually sur+ised by t!e evidence... n remand ? will amend answer and everyone will =now t!e issues and case can

be settled or retried.

>eading Layman strictly:

>egardless of w!et!er reveryone =new about t!e claim of t!e easement: remand t!etrial anywya and give C an underserved second c!ance.

#trict reading of Layman means: any affirmative defense must be +leaded in ananswer as an affirmative defense.

Kote t!at w!et!er or not somet!ing li=e t!is would geninuely sur+rise C would de+end

on !ow muc! discovery or +retrial +rocess !as occurred '' if very little '' t!en t!e+leadings bear t!e entire burden of e@+osing t!e issues in dis+ute "li=e in commonlaw&. t!erwise s!ouldnDt ma=e muc! diff w!et!er somet!ing is +leaded as a denialor an affirmative defense because C !as notice.

C only needs to re+ly if ?Ds answer contains a counterlaim t!at is labeled as a

counterclaim '' under >ule 2"a& In ot!er words if ? s!ould !ave +ut somet!ing in as a counterclaim but labeled it an

affirmative defense 7 no re+ly reBuired. If t!e answer says somet!ing is a counterclaim but is really an affirmative defense

tec!nically a re+ly is not reBuired 4 catious lawyer may re+ly anyway.

Hmendment of Cleadings '' >ule )5

>ules allow +arties to amend "i.e. c!ange t!eir +leadings&.

!is goes !and in !and wit! discovery rules w!ic! allow for broad discovery.

Carties need to be able to reflect t!e new findings into t!eir +leadings '' )5"b&

Hmendments allow for more accuracy 7 finding t!e trut!

!ey also need to be able to correct insignificant mista=es by >ule )5"c&

t!ings t!at do not c!ange t!e nature of t!e claim or not suing new defendant w!o did not !ave notice often C will want to ma=e an amendemnt to a claim t!at if not allowed to relate

bac=J would be barred by s.o.l. w!ole +oint of s.o.l. is to give a certain time frame u+on w!ic! ? could e@+ect

could get sued... s.o.l. !as run... no suit I can rela@J '' if ? -K# a +arty meantto sue !im but did not t!en t!is does not offend t!e +ur+ose of s.o.l.

4 easy amendment needs to be balanced wit! +re0udiceJ '' at some +oint a +arty

!as to decide !ow to +resents its case so t!e ot!er +arty can do w!at it needs to. enerally too late to c!ange if: s.o.l. !as run


17/41

+arty was wit!!olding somet!ing +urely to gain advantage

eec= v. HBuaslide "+. 35(&

C broug!t #CL suit against ?.

Hfter s.o.l. !ad run ? realiNed t!e +roduct wasnDt t!eirs.

6ourt let t!em amend its answer to deny manufacture se+arate trial was !eld on issueof w!et!er ? in fact was t!e manufacturer. ury found ? not manu 7 case dismissed.

C a++ealed basically wanted t!e court do +ull a Xelins=i and ma=e ? stand by w!at it

initially stated.

H++eal court affirmed because it did not !ave any evidence t!at trail court abused its

discetion '' noting t!at trail court !ad not found evidence of bad fait! or undue delayt!e investigation on t!e +roduct !ad not lac=ed diligence and noted C !ad not raisedissue t!at ? was not manu eit!er.

Leave to amend was correctly given.

#uc=s to be C but note t!at if t!is would !ave gone to trail it would !ave been a mess...

!ow would ? !ave defended t!e design of a +roduct t!at wasnDt even t!eirs; Kote C could not !ave used )5"c&"3& to c!ange t!e +arty name of ? '' amend bac=

because in order to do so t!e real ? would !ave !ad to =now or reasonably s!ould!ave =nown t!at HBuaslide was being sued in error and t!at it s!ould !ave been !im. Im+ortant t!at a +arty -K# a +arty meant so sue !im but mista=enly did not. Kote Xeilins=i is a case w!ere )5"c&"3& woud !ave a++lied +erfectly.

>elation ac=:

$oore "+. 59&

riginal claim 7 informed consent

Hmendment 7 medical mal+ractice

>elation bac= ?AKIA?. 6ourt says original did not allege any

negligence eit!er during or after surgery.

C would !ave !ad to +rove com+letley

different factsJ to win !er amended claimversus !er original claim.

Kote C tried to amend HGA>

discovery. SaN t!in=s t!is was im+ortant.

onerb "+. 31F&

riginal claim 7 negligently maintaining

bball court.

Hmendment 7 counesling mal+ractice >elation bac= >HKA?.

6ourt notes in original C asserted several

instances of ?Ds neg conduct includingfailure to +ro+erly su+erviseJ

6ourt says came original and amended

com+laints derive from t!e samenuclear of o+erative factsJ

Kote C tried to amend at AG>A

discovery was over "de+os !ad yet to beta=en not e@+ert witness info&.

Lesson: If early in discovery somet!ing comes u+ H$AK? immediatelyQQ

''''''?isclosure v. discovery

?isclosure; $ay be used to #4CC> claims or defenses.

?iscovery; Hny matter >ALATHK to claims of defenses.


18/41

?I#6TA>S

If case is not dismissed t!roug! initial +leadings 7 +re'trial i.e. discovery +!ase

$ost lawsuits end !ere.

?iscovery ends lawsuits for two reasons:

). +roduces info about t!e merits of eac! +artyDs +osition 7 can end in settlement or

# due to merits of t!e case. . discovery costs time and money 7 can end due to lac= of resources not due to

t!e merits of t!e case.

#co+e and de+t! of moden 4.#. discovery is uniBue.

?iscoverable information:

>elvant info...

>elevance ties discovery and evidence to substantive law. >elevant info 7 any info t!at tends to +rove or dis+rove somet!ing t!e law says

matters. Irrelevant info 7 not signficant to t!e substantive law e.g. if - dis+ute

claim t!at goods were defective 7 condition of goods is relevant

claim failure to +ay because E used for sic= relative 7 !ealt! of relative is

irrelvant because in t!e law of contract, one%s motives for breaching a don%tmatter.

K Crivileged...

Crivileged info 7 info t!at we t!in= deserves +rotection because of somet!ing t!at ismore im+ortant t!an getting to t!e correctJ outcome of t!e case. A.g. +rivacy self'incrimination attorney'client relations!i+ etc.

Kote +rivilege info is often highly relevant. H +rivilege is not absolute it can be HITA?.

A.g. doctor'+atient +rivilege will be waived if +atient sues for +ersonal in0ury and? wants medical records because C !as c!osen to come into court and +ut !is own+!ysical state at issue.

t!erwise discoverable info may be +rotected by a +rotective court order.

Crivilege vs. trial +re+aration

rial +re+aration +rotection may be overcome by a s!owing of substantial need"+rove case and unable w/out undue !ars!i+ to obtain eBuiavalent&

Crivilege unless waived is absolute

rial +re+aration vs. +rotective orders

1"b&"3& '' trial +re+aration '' +rotects certain info t!at is +roduced by lawyer in t!e+rocess of +re+aring for a case "i.e. +re+ared for anciti+ation of litigation&

giving t!is info over would reflect lawyerDs t!eory of t!e case trial +re+ mateiral not discoverable unless substantial need.

+resum+tion of K access

1"6& '' +rotective order '' balances need against colleteral !arm lots of 0udicial discretion about w!et!er and !ow to +otect it.

Cresum+tion of access.


19/41

#eBuence , #tructure of ?iscovery

Crefiling investigation wit! informaldevices7 reBuired under >ule ))

#ervice: ?efendant served "5& or waives formal service "("d&&

H++earance: ? files some +a+er/motion t!at s!ows its +artici+ation in t!e lawsuit by

answer "8& or )"b&"1& motions 6onference of +arties: 1"f&

+arties must as soon as +racticable but at last ) days before sc!eduling conferencemeet to discuss claims deenese settlement and resolution +ossibilities ma=e/arrangedisclosures and develo+ +ro+osed discovery +lans/rules.

#c!eduling 6onference !eld by 0udge

#tage ) '' ?I#6L#4>A: 1"a&

Aac! +arty ma=es initial disclosures 7 forces +arties to decide t!eir args early on asic disclosures "e.g. names address of witnesses docs used to su++ort

claim/defense com+utation of damages insurance agreements 7 1"a&")& ?isclosure of e@+ert testimony: must disclose e@+ertDs re+ort including all

o+inions/basis t!at will be used* e@+ertDs Bualifications , +ublications 7 1"a&"& can su++lement disclosures later on 7 1"e&

If it is relevant not +rivileged and will be used tosupport+artyDs claim* calculationsof damages insurage agreements 7 disclosed 4KLA## will be usedsolely for impeachment"info t!at will only be used to attac=

credibility if a witness testifies& only a++licable at disclosure stage if as=ed rig!t ; at discovery must +roduce

some evidence may be used to im+eac! or to su++ort case "but im+eac! info is

subset of t!e info t!at can s!ow contradictions in CDs case& note using t!is e@c+etion is ris=y because if t!e witness never testifies lose

c!ance to use t!is evidence to su++ort case "vs. losing element of sur+rise& 6onsists of into t!at !as emerged as being +ertinent to every case. iming: >ule 1"a&")& reBuires +arties to ma=e disclosures at sc!eduling conference

or w/in )( days after.

Carties may begin to use ot!er forms of discovery ' de+ositions interrogaties etc.

#tage '' ?I#6TA>S: 1"b&

?iscoverable Information: ). relevant; Carties wit!out court a++roval may see= discovery regarding any

matter not +rivileged t!at is relevant to t!e claim or defense of any party... PandRreasonably calculated to lead to t!e disocvery of admissible evidence.J

. Crivileged;

3. Crotective rders 1"c& info t!at is relevant is not +rivileged but nevert!erless ina++ro+riate evidence if

it would +roduce annoymance embarassmen o+ression or undue buden ore@+enseJ "i.e. evidence s!ould be +rotected because of +ublic +olicy concern&

+rotection often reBuestd to +revent discovery in one case from being used in

anot!er similar case. "future liability vs. efficiency for new litigants& (. rial Cre+aration ' $aterials 7 1"b&"3&


20/41

info on t!e mental +rocesses of ot!er +arty or !er re+resetnative "including attny

consulant insurer etc& developed in preparation for litigation. $ay be obtained if s!owing of #4#HKIHL KAA? "substantial need of t!e

matierial in t!e +re+aration of +artyDs case and unable wit!out undue !ars!i+ toobtain eBuivaluent&

H +erson "+arty or non'+arty& may obtain w/out t!e reBuired s!owing a writtenstatement by !erself +reviously made or recording of oral statement

5. rial Cre+aration ' A@+erts 7 1"b&"(&

a +arty may de+ose any +erson w!o will be an e@+ert witness "after receiving

disclosed re+ort& 7 1"a&")& t!e mental +rocesses of non-testifying epertsdeveloped in preparation for

litigationmay only be discovered "t!roug! de+os docs& under a s!owing ofAYC6ACIKHL 6I>64$#HK6A# "canDt obtain by ot!er means&

note alternative a++roac! to get info from non'testifying e@+ert is to say not an

e@+ertJ but +erson is li=e a GH6 witness i.e. +arty didnDt retain for litigationbut +arty went to !im because of t!is +rob.

Interrogatories , >eBuests for Hdmissions: Interrogatories 7 33:

6HKK send an interrogatory to KK'CH>S can only de+ose a non'+arty.

Ko more t!an 5 Buestions "w/out +ermission&

b0ection to interrogatory 7 33"b&"(&

>eBuests for Hdmission 7 31

Carty may serve a reBuest for admission to a statements or o+inions of fact or

of t!e a++lication of law to factJ Hn admission is li=e a +leading '' ta=es matter out of controversy.

if evidence to t!e contrary "e.g. Buestionable credibility of +erson ma=ing t!e

statement reBuested for admission& 7 donDt admitQ If non'com+lying answer is given "e.g. failing to answer& 7 court may order t!e

the matter as admittedor t!at an amended answer be served. A@amining !ings/Ceo+le: Ins+ection of land ob0ects and documents "any medium for recording data or

information& 7 3( >eBuests to non+arty '' sub+oena under (5"a&")&"6&

4nli=e de+ositions interrogatives number of documents reBuests not limited

C!ysical and mental e@aminations 7 35

?e+ositions 7 8 3F 3) 3 4sually last because !ard to do w/out good bac=ground info.

no more t!an )F total de+os ta=en by one side* no de+o more t!an 2 !ours* no+erson de+osed @ "if want more need +ermission of court or ot!er side&

instruction to not answer must be necessary to +reserve a +rivilege to enfroce

limitation directed by t!e court or to +resent a motion under 3F"d&"(&J 7 3F"d&")& ob0ection to ot!er concerns "e.g. irrelevant Buestion& s!ould be noted 7 3F"d&")&

Anforcement/com+liance wit! discovery rules 7 1"g&* 32 3 basic +atterns of discovery abuses:


21/41

too little discovery "stonewallingJ& 7 +arty refuses/resists a++ro+riate reBuests

too muc! discovery 7 +arty see=s more discovery t!an 0ustified to !urt o++onent

mismatc!ed discovery 7 one +artyDs resources significantly more

eneral info:

6ourts e@+ect +arties to wor= t!ings out before t!e court must ste+ in.

note w!ile )) auto!riNes sanctions on law firm in addition to or in liu of t!e

indiv. lawyer neit!er 32 nor 1 contains suc! a s+ecific aut!oriNation. #igning of disclosures discovery reBuests res+onses and ob0ections 7 1"g&

1"g& is li=e >ule )) w!ic! reBuires +arties to act in good'fait! ma=e

reasonable inBuiryJ before signing a reBuest res+onse or ob0ection. note t!at $IK# relating to discovery are governed by )).

sanctions for ma/ing unjustified discoery requests or refusals1"g&"3&

#ome sanctions are available for misbe!avior "missing de+o not serving answers

to interrogatories or res+onding to reBuests for ins+ection& 7 32"d& , "g& t!er sanctions only a++ly after +arty fails to com+ly wit! court ordergranted

after opponent ma!es motionto com+ell disclosure or discovery 7 32"b& $otion for 6om+elling:

H +arty after giving notice may a++ly for an order com+elling disclosure or

discovery by motion 7 32"a&"& If motion is granted court after giving t!e o++osing +arty an o++tny to be !eard

may award reasonable e@+enses unless moving +arty did not ma=e good'fait!efffort to confer w/ o++osing +arty or o++osing +arty !as good 0ustification orot!er circumstances ma=e award un0ust 7 32"a&"(&

Gailure to ?isclose or Hmend ?iscovery* Galse ?isclosure* >efusal to Hdmit

failure to: ma=e initial disclosures by 1"a&* to su++lement disclosures by 1"e&

")&* or amend +rior res+onse to discovery by 1"e&"& 6K#O4AK6A 7 evidence IKH?$I##ILA at trial 7 32"c& ")&

unless failure was !armless because ot!er +arty =new about it but may still

!ave to +ay sanctions for t!e failure failure to admit somet!ing t!at was later +roved true "31&

6K#AO4AK6A 7 +ay reasonable e@enses incurred in ma=ing t!e +roof

#tage 3 "in some cases&: 1"b&

y leave of court If good cause court may grant broader discovery of any matter relevant to t!e

sub0ect matter involved in t!e action.J

>ALATHK6A6H#AAYH$CLA#

?avis v. Crecoat $etlas "+. 315&

!at claim by C;

Cs sued em+loyer for race and national origin discrimination and reteliation.

Info soug!t;


22/41


23/41

Crotective rder '' 1"c&

#talna=er v. -mart 6or+ "+. 38)& CDs claim for se@ual !arrasment at wor= ? soug!t +rotective order +rotecting non'+arty witnesses from being as=ed Buestions

concering romantic/se@ual conduct w/ ? under >ule 1"c&.

6ourt limited sco+e of t!e discovery: ? gave good cause for barring discovery of voluntary romantic/se@ual activities to

t!e e@ntet t!y !ave no relations!i+ wit! current claim. 4 since any se@ual !arrassment by ? is relvant inBuiry is allowed regarding

any voluntary/se@ual actitivies wit! ? to t!e e@tent t!at it s!ows ? solicited t!eactivities.

rial Cre+aration ' $aterials '' or wor= +roductJ 1"b&"3&

Mic=man v. aylor "+. 39)& C was suing for tug boat accident. C soug!t non'+rivileged material "from defense attnyDs investigation of survivors& K discovery C already !ad muc! of it or could obtain it !imself admited wanted it

to +re+are !imself to e@amine witness to c!ec= not overloo=ing t!ings. Kote today t!is info may be +rivileged under 4+0o!n "attorney'client +rivilege

e@tends to communications between counself and all co+rorate em+loyees&

rial Cre+aration '' A@+ert

!om+son v. Mas=ell: assumed non'testifying e@+ertDs re+ort on +syc!ological e@amta=en rig!t after C was allegedly wrongfully terminated due to se@ual !arrassmentw!ere C claims emotional distress. iming Z no real alternative 7 ?iscoverable

mental state rig!t after firing !igly +robative inaccessible to ? at t!is +oint.

6!iBuita: e@+ert re+ort on foiled s!i+ment of bannas. #eems li=e free'loading 7 K discoverable

? !ad own o++tny to get info vessel and eBui+ment were acccessible to ?* indeed

under ?Ds e@clusive control for a w!ile.

?I#6TA>SH4#AAYH$CLA#

!om+on v. M.4.?.

6lass action for racial segregation in +ublic !ousing. In re+onse to lots of docs reBuests under 3( ? didnDt res+ond. 6ourt told +arties to wor= it out t!emselves '' analyNe burden/benefit factorrs of >ule

1"b&"&. 6oo+erate and be creative.

Coole

C was suing for overturned golf cart. ? violated all sorts of rules '' s+ecifici +rovisions were awarded sanctions under32"a&"(& '' failure to res+ond to certain discovery reBuests as well as sanctions under1"g&"3& for overall !alf'ass wor= t!ey did in re+onse to discovery reBuests.

6ourt c!ose not wared additonal sanctions beyond reasonable attornysD fees andcosts because of lac= of evidence of bad'fait!.

< note discovery abuse doesnDt 0ust !urt ot!er side !urts t!e violater sideDs too. ecausefailing to do in'de+t! loo= of t!e real evidence may result in ignorance to t!e strengt! of


24/41

t!e clientDs case. ill end u+ !urting if donDt discover evidence early on t!at indicatest!at t!e suit s!ould be settled. 6ould end u+ !aving to +ay sanctions for discovery abuseZ losing t!e case.

'''''

#ALA$AK

H#CA6#G6ITILLIIHIK

6ourts insist on ad0udicating unless +arties agree. Hdversarial +rocess if you donDt

stay engaged it will end. udgment by default: if a +arty !as failed to +lead or ot!erwise defend as +rovided

by t!e rules and t!is fact is made to a++ear by affidavit or ot!erwiseJ 7 55 Involuntary dismissal: for failure of C to +rosecute or to com+ly wit! t!e

rules/order of court ? may move for dismissal of an action or of any claimJ 4nless ot!erwise s+ecified a dismissal is an ad0udication u+on t!e merits 7 ()"b&

e@ce+t dismissal for lac= of 0uris im+ro+er venue of failure to 0oin a +arty under

>ule )9 rials 7 e@+ensive un+redicrable all or not!ing

#ettlements:

Cro: converging estima=es on merits save bot! sides cost ris= time can be creative 6on: ? may !ave muc! stronger resources t!us bargaining +ower* ? may be scared

of t!e ris= and +ay to settle meritless claim.

Anding t!e case by dismissal so one can settle: ()

Toluntary dismissal: action may be dismissed by C wit!out order of court by filinga notice of dimsisal at any time beforeservice by t!e adverse +arty of an answer or ofa motion for # w!ic!ever occurs firstJ > by filing a sti+ulation of dismissalsigned by all +arties w!o !ave a++ared in t!e action.J 7 ()"a& !e dismisall is IM4 +re0udice "e@ce+tion if C already broug!t action based

on or including t!e same claim and dismissed once before&

enerally no 0udicial a++roval:

A@ce+tion: minors* class action settlements 7 3"e&

Hbility to enforce settlements

#ettlements are -s #ettlements can be attac=ed on any ground w!ic! one can attac= a -: fraud

duress mista=e inca+acity unconsionability etc. If original claim was a federal action w!ic! could !ave been broug!t in fed court

now to enforce settlemnt for breac! of - 7 state law in state court.

4KLA## settlement is embodied in a 0udgment or consent decree >esult 7 t!e court =ee+s 0uris in order to endforce t!e settlement

If C tries to file lawsuit again: Hffirmative defense accord and satisfactionJ 7 8"c&

$otion for # rendered if t!e +leadings de+ositions ansewrs to interrogatories

and admissions on file toget!er with the affidavits, if any s!ow t!at t!ere is nogeninue issue as to any material fact and t!at t!e moving +arty is entitled to a0udgment as a matter of law.J 7 51"c&


25/41

attac! settlement agreement former com+laint if any attested co+y of 0udgment if

any.

H substantial amout of ad0udical !a++ens before trial '' 3F%

Hll t!e diff ways a case can end besides going to trial

#ome #ettlement wists:

6laim +reclusion and 0uris: $atsus!ita: state court 0udgment "emodying a settlement agreement& can settle

claims t!at t!e state court !ad no 0uris to ad0udicate "i.e. a fed claim& and because itis a 0udgment 7 )238 "Gull Gait! , 6redit& 7 every court must treat t!is

0udgment as t!e state itself would treat it under its laws.

6onfidentiality "of facts terms of t!e settlement etc&

note t!at disclousures under >ule 1"H&")& or "& and t!e following discoveryreBuests and res+onses must not be filed until t!ey are used in t!e +roceedings or t!ecourt orders filing: de+ositions "3)& interrogatories "33& reBuests for documents orto +ermit entry u+on land "3(& and reBuests for admission "31& 7 5"d& +arts of discovery usd in some =ind of motion will be on +ublic record so long as

t!ere is not a court order +rotecting it... e.g. for # need some =inds of evidence sosome =inds of documents will !ave !ad to be used.

-alinaus=as "+. (38&: if t!e facts and issues of a dis+ute are to be =e+t confidentialaccording to a settlement consent decree wit! confidentiality agreement '' in asubseBuent lawsuit broug!t by a new +arty t!e facts of t!e +receding case so long ast!ey are relevant to t!e new claim will not be +rotected t!roug! a motion forCrotective rder 1"c& w!ere t!e court views t!e information as concelainglegetimate areas of +ublic concern "!ere evidence of se@ual !arassment&. Lesson: a confidentiality agreement cannot t!row a blan=et over facts.

H>I>HIK:

?ifference between mediation is t!at arbitration is a contractually agreed to

adjudicationi.e. outcome.

Hdvantages '' room to be creative +otential for +ersonaliNed +rocedures ability to

control a++licable substantive law more +rivacy can utiliNe aribtrators wit! s+ecialiNed=nowledge etc. "e.g. riters uild of Hmerica& 6ons: no +ublic scrutiny for dis+utes involving statutory claims

6ourts first didnDt li=e arbitration wouldnDt com+el t!en second wave did so +retty

freely t!ird wave is courts will com+el or u+!old arbitration but only t!at w!ic! meetscertain guidelines.

eneral a++roac! court ta=es to arbitration: Gront end: will court enforce arbitration; eneral rule: Ses but...

ac= end: will court review arbitration award; eneral rule: Ko unless e@treme misconduct by t!e arbitrator"t!e actual +rocess

+resumably o=ay or would !ave being deemed invalid on t!e frotn end&

Gederal Hrbitration Hct:

>emember arbitration agreemtns li=e settlements are -s


26/41

Anforces agreements to arbitrate +rovided t!at: Hgreements to arbitrate are valid irrevocable and enforceable unless t!ere are

grounds in law or in eBuity for t!e revocation of t!e -. If a +arty in s+ite of an arbitration agreement files a lawsuit t!e court must stay

t!e trial of t!e action until aribtration occurs "sus+end t!e claim&

< !ere fed district court !as 0uris over t!e underlying dis+ute "already in court& H +arty can reBuest a district court for an order directing anot!er +arty to +roceed

wit! its abritration agreement. < t!e court can only direct an order com+elling arbiration w!en t!e fed district

court would !ave 0uris over a suit in t!e underlying dis+ute "diversity fed claim& #6 !as suggested t!at state courts are also bound to follow t!e Ged. Hrbitration Hct.

#6 !as reBuired state courts to enforce arbitration agreement even w!en contrary tostate law if undelrying transaction involves interstate commerce.

#6 !as u+!eld mandatory arbitration claims of statutory claims noting t!at indiv

doesnDt give u+ t!e substantive rig!ts afforded by t!e statute but submits to resolutionby arbitral instead of 0udicial forum.

Limitations: ). #tatutes w!ere 6ongress !as mandated a 0udicial forum "can loo= to statutory

te@t legis !istory iner!erent conflictJ between arbitration and statute& basic argument '' due to t!e s+ecial nature of t!e claim s!ould not be arbitrable

c!aracterisitcs to consider "!ow +ublic im+ortant t!e underlying dis+ute etc&

. If arbitration is suitable forum t!ere must not be +rocedural unfairness in t!es+ecified arbitration +rocess. >emember Ged Hrbitration Hct indicates t!at can be invalid based on - law.

>yanDs Gamily #tea=!ouse"court found arbitration agreement invalid because of

lac= of consideration w!ere t!e 3rd+arty arbitrator reserved t!e rig!t to c!oose t!enature of its +erformance "rrig!t to alter t!e rules and +rocedudes wit!out notice orconsent of t!e +arties& ' t!us ma=ing its +romise illusory& "+. ((2&

ut note since t!is de+ends on inter+retation of - law '' this same arbitration

agreement was found to be validby a different circuit w!ere C arguedunconsionablity.

rounds for finding arbitration +rocess invalid: e@tremely one'sided +rocess lac= ofmutuality of obligation w!ere +rocedures less !os+tiable t!an courts "e.g. !aving to+ay !alf of arbitratorDs fees u+ front& limitations on remedies "e.g. barring +unitivesnot +roviding for attny fees to +revailing +laintiff w!ere fee's!ifting statute a++lied&

Hbility to a++eal:

riters uild of Hmerica suggests a++eal to a court is +ossible but will li=ely be

very narrow. 6ourtDs reviewing +owers are limited to w!et!er t!e +arties actually agreed to

submit t!eir dis+ute to arbitration and w!et!er t!e arbitrator followed t!e agreed toarbitration +rocess.

''''''4?$AK#H#H$HA>GLH


27/41

Hd0ucative alternative to trial '' for cases t!at are so one'sided trial would be +ointless.

7 w!en t!ere is no geinue issue of any material factJ 7 >ule 51 udgment based on t!e legal and factual matters of t!e case

AG>A?I#6TA>S/C>A>IHL7 )"b&"1&

HGA>?I#6TA>S AG>A>IHL7 # 51

?4>IK>IHL7 udgment as a matter of law '' 5F"a& HGA>>IHL7 $otion for 0udgment after trial "0.n.o.v.& 5F"b&

# 51 motion vs )"b&"1&

)"b&"1& motion 7 t!e court assumes t!e stated facts to be true and loo=s w!et!ert!e facts com+rise a claim under t!e substantive law since a +reanswer motion ta=es no +osition on t!e trut!/falsity of CDs allegations

51 motion 7 is very factually based. Hre material facts dis+uted;

nce undis+uted facts are identified

>A'H#-# t!e same issue as )"b&"1&

If undis+uted facts no longer state a claim 7 # for ? If undis+uted facts state a claim 7 # for C

# 51 motion vs udgment as a $atter of Law >ule 5F

5F occurs ?4>IK t!e trial "same idea&. Hfter C !as been fully !eard on an issue ? can ma=e a motion for a directed verdict

under 5F"a& on t!at issue court may determine t!e issue if no basis for reasonable 0urto find for t!at +arty on t!at issue 7 and may grant motion for 0udgment as a matterof law.

#4$$H>S4?$AK:

$ust s!ow no geniune issue of any material fact e@istsJ

Mig!lig!ts: # is all about #CA6IGI6ISQQ

# after 6elote@ ma=es t!e effective use of discovery mandatory '' if a +arty doesnDt

come u+ wit! evidence after reasonable time of discovery 7 0udgment on t!e meritsbefore trialQ Ko saving t!e big guns till trial 7 s!ow cards at +re'trial or wonDt +roceed to trial

# and urdens of Croof

Ht trial eac! +arty will carry t!e burden of +roof for an element loo= w!et!er t!e element is for CDs claim or ?Ds affirmative defense/counter'claim

H v. fraud claim

claims s.o.l. as affirmative defense ne mont! into discovery moves for # ' to stri=e s.o.l. defense on grounds

cannot s!ow t!at C s!ould !ave uncovered fraud w/in t!e s.o.l. +eriod. !as t!e burden of +roduction on t!e s.o.l. issue since affirmative defense

6an as= for more time...

burden at # 7 burden at trial < means t!e standard for # will de+end on w!ic! +arty is ma=ing t!e motion


28/41

# 0ust moves u+ t!e inBuiry as to w!et!er +arty can meet essential elements toeliminate t!e need for !aving to +roceed to trial.

eneral Crocess of #:

moving +arty +roduces evidence t!at s!ows no geniune issue of material fact urden s!ifts 7

nonmovign +arty +roduces evidences t!at s!ows t!ere I# a geniune issueIHL#

#ome stats:

Ged disrict 0udge "civil litigation& +robably !as about 5FF cases


29/41

#tate 0udge )5FF'FFF cases 9F% of cases end w/ modest court action in less t!an 8 mont!s F% cases end in avg of 1 mont!s "Buic= settelements&

2F% cases see some court action but end before +retrial ' 2.2 mont!s

8% end at +retrial

about '3% of cases end at trial courts !ave enourmous amount of cases filed

best management tec!niBue 7 setting early trial dates "but increases costs&

y+ical sc!eduign and +lanning 7 everyone manages toget!er

Cretrial conferences sc!eduling and management 7 )1

court can enforce sanctions for not com+lying wit! +retrial rules "sc!edulingsubmitting witness lists briefs etc& but dismissal sua s+onte "no warning& '' s!ould only be for e@treme circumstances

"#anders en banc&

Cretrial orders ''

Tary by court* some courts reBuire +retrial statements defining issues +roofss+ecifying admitted/disu+ted facts. 6an !ave im+. conseBuences for trial

$c-ey"C tenant ould not c!ange !er t!eory in +retrial order for neg case against LLby adding t!eory of liabilty based on !ousing codes& riginal t!eory of liability relied on lease

Kew t!eory of laibiltiy relied on !ousing code

?uring trial C coudnDt introduce evidence +arts of t!e !ousing code because t!ey

were irrelvant to !er neg claim t!at said breac! of duty owed under lease. i.e. t!is evidence would s!ow breac! of duty was owed under !ousing code

Hmending Cretrial order:

Hfter any +retrial conference an order is entered reciting t!e actions ta=en

!is order controls t!e subseBuent court of action unless modified by anot!ersubseuBent order.

Hn order following t!e +retrial conference s!all only be modified to +reventmanifest in0usticeJ 7 )1"e& >eBuires weig!ting !arm to C in limitig t!e considerations of !er case against t!e

+ossible +re0udice to ? if amendment is allowed. Cossible for court to order a continuance to balance t!ese two considerations

y+ical s!eduling/+lanning:

>ule 1"f& conferences of lawyers

) days before >ule )1"b& sc!eduling conference

bot! sides !ave to say w!at t!ey t!in= about discovery. Laywers meet and conferJ e@+lore claims setttlement discovery +lants "incl.

disclosure& oint re+ort to 0udge

>ule 1"a&")& disclosures

Ht or w/in )( ays after 1"f& conference

>ule )1"b& sc!eduling coference ''

Ait!er actual meeting or +!one call.


30/41

< udge is reBuired to set a timetable 7 to get +arties to use rules framewor=effectively w!ic! includes t!e crucial use of ?I#6TA>S ' t!e tec!niBue t!at ismost !el+ful in aiding settlement.

?iscovery and ot!er deadlines inc. additional conferences Ht t!is sc!eduling conference t!e 0udge !as leeway for additional meetings.

?iscovery

#ettlement conference;

$ay not occur* may be combined wit! ot!er conference

>ule )1"d& finalJ +retrial conference.

If t!is is a case t!at loo=s li=e it will go to trial need to nail some t!ings down "e.g.w!at e@actly are you claiming;&. $ay !ave deadline for amended +leadings.

A@+lore settlement * refine area of dis+ute* witness and e@!ibit lists #et number of trial days.

'''''''''

Aven t!oug! most cases donDt get to trial still im+ortant w!at !a++ens at trial becauseoutcomes at trial create t!e s!adow of t!e lawJ in w!ic! settlement negotations occur ''influences estimations of w!at would !a++en at trial.

>IA>GGH6

udge:

ecause most cases end before trial for most caes t!e only deicions made by anyone

ot!er t!an t!e +arites t!emsleves is t!e 0udge "0uris and venue coice of law +leadingsdiscoveyr motonis motions for #&

Colicy reasons for 5((:

6ourts must not only be but seem to be free of bias or +re0udice 7 an a++earanceof +artialityJ is at odds wit! t!is...

>ecusal on demand would let +arties veto unwanted 0udges recusal only a++ro+riatew!en t!re is a factual basis.

ias and >ecusal:

)((: allows +arties to file an affidavit +ointing out t!at 0udge is biased "at least )F

days beore beginning of t!er term w!iic! +roceeding is to be !eard& must bin good'fait! only get one suc! affidavit. udge can rule on t!e c!allenge to !er im+artiaility !erself but many as=

colleagues(55:

"a& any 0duge s!all disBualify !imself in any +roceeding in w!ic! !is im+artiality

mig!t reasonably be BuestionedJ 7 very >H?0udge may acce+t waiver from t!e +arties to !ear case

"b& 0udge s!all disBuality !imself for very #CA6IGI6 circumstances

6HKK acce+t waiver to !ear case under HKSMIK in (55"b&

Includes if 0udge !as financial interest no matter !ow small


31/41

"f& +rovides for sutation w!ere grounds for disBualification un=nown before trial...

after long time... emerges... disBualification not reBuired if t!e 0udge diversts!erelf of t!e interest t!at +rovides t!e grounds for t!e disBualficationJ

#tandard for >ecusal:

?isBualitifcation is only a++ro+riate w!en t!e c!arge is su++orted by a factual basis

H reasonable +erson under t!e cirumstances would doubt t!e 0udgeDs im+artiality < substantive standars for disBualifications same for bot! statutes

>ecusal case H++eals

). s!ould t!e 0udge !ave recused !imself; . if so did t!e failure to reclus invovle a seroius li=eli!ood of in0ustice as to

overturn or reo+en t!e case;

>ecusal during a case "very rare&

udicial attitudes acBuired during litigation itself "intra0udicial bias& ?isBualification only w!en 0udicial remar=sJ reveal suc! a !ig! degree of

favortism or antagonism as to m=e fair 0udgment impossibleJ

6om+laints:

32 lets you com+lain about 0udges but will not remove a 0udge. nly recusalcan.

>ig!t to 0ury trial

rig!t to trial by 0ury in GA?A>HL courts granted by 2 t!amend.

6an be very im+ortant because trial and a++ellate courts are bound to give 0ury verdicts

wide deference '' by t!e 2t!amend.

2t!amend +rovides t!e rig!t to 0ury in suits in common law w!ere t!e value of

contovery s!all e@ceed EF t!e rig!t of trial by 0ury s!all bepreservedJ

Mistorical test: +arty !as a rig!t to 0ury if t!e claim would !ave been w/in t!e 0uris of

t!e common law courts in )29) "rat!er t!an t!e court of eBuity& ?e+ends on t!e >A$A?S being soug!t: 6ommon law 7 breac! of - ?H$HA# re+levin e0ectment 6ourt of ABuity 7 in0unctions suit for - reformation , rescission < w!en +arty as=s for mi@ of remedies 7 +arty gets 0ury on any factual Buestions

t!at overla+. A.g. suit for nusiance want in0unction HK? damages

ury would !ear ;s li=e: was t!is sufficiently unreasonable to be nuisance;J

ury decides t!is Buestion* 0udge boundby it but uses !is discretion to determine

w!et!er or not to grant in0unction. AY6ACIK: note a statute can e@+licitly give you a rig!t to trial by 0ury.

H +arty may demand a trial by 0ury of an issue t!at is triable by 0ury by serving u+ont!e ot!er +arties a demand no later t!an )F days after t!e service of t!e last +leading.7 38"b& If not done as reBuired in "b& it is waived 7 32"d& < lesson if you want a 0ury trial and !ave suc! a rig!t +ut in original +leadingQQ

uries

0ury outcomes v. 0udge outcomes


32/41

benc! trial reBuires 0udge to s+ell our inferences 7 5"a& overturned if clearly erroneousJ

0ury trial 7 blac= bo@ as to !ow t!ey decided t!e outcome given wide deferece

< note by t!e time reac!es trial t!eoretically a 0ury could find for eit!er side or it

would !ave been weeded out already Crinci+le of adversarial +rocess 7 adversarial +resentation of +roof for elements.

urden of +roof:

urden of +ersuasion: the etent"i.e. t!e amount& to w!ic! 0ury must be convincedof some +ro+osition of fact in order to reac! a verdict for that party that bears it. nly comes in w!en HLL t!e evidence is in and trier of fact is evaluting all of it.

urden of +roduction: t!e res+onsibility of a +arty to +roduce evidence for a factual+ro+osition from w!ic! t!e fact finder 64L? rationally decide in !er favor. $4# come in before trial during investigation and discovery or # "6elote@&

#tarts from t!e moment t!e case begins

>ational inference:

!o bears t!e burden of +ersuasion in civil cases rarely #LALS ?AA>$IKA#t!e outcome because it is only w!en 0ury is ?AH? ATAK on w!et!er it is moreli=ely t!an notJ t!at CDs +ro+osition is true 7 in t!is situation because C bearsburden of +ersuasion "5)%& must decide for ?. Hll t!ings being eBual burden of +ersuasion trium+!s

i.e. only come is w!en 0ury is not even t!e slig!test bit leaning more on one side

A.g. >eid v. #an Cedro"verdict s!ould !ave been directed for ? because C failed to+roduce evidence from w!ic! a 0ury could decide !er story was more li=ely t!an not'' !ere C +roduced evidence +ointed wit! eBual force to C and ?Ds side&"+. 5)2&

6ontrolling t!e boundaries of 0ury rationality:.m.l. ">ule 5F& vs. Kew trial ">ule 59&

udgments as a matter of law "5F&

nly on motion

$ust be C>A'TA>?I6

nly issue 7 adeBuacy of evidence

as t!e burden of C>?46IKmet;

?ALHSA? >4LIK "0.n.o.v.& 7 >e+lace

0uryDs verdict wit! 0udgeDs 0udgment #ometimes good to delay ruling !o+e

t!at 0ury will return +ro+erJ verdict ifnot 0udge can resuce by granting0.n.o.v. '' >ule 5F"b& '' in case ofa++eal can reinstate 0uryDs verdict&

>esults in final 0udgment

Hnd t!erefore immeidately a++ealable

Kew rial "59&

n motion or 0udgeDs initative

>easons for new trial:

Glawed +rocedures: e.g. erronous 0ury instructions

failing to admit +iece of evidence Glawed verdicts e.g. verdict is against t!e weig!t of

t!e evidence "K b/c 0udge !erself

would !ave decided differently& < t!is reason sub0ect to more

scrutiny by a++eals b/c 0udge tosome e@tent substitudes !is0udgment on facts/credibility

#ends case to new 0ury

Ko final 0udgment if granted


33/41


34/41

''''''

G>$A>H?4?I6HIK

Colicy ustifications: Afficiency

>es+ect for 0udgments

?onDt want to say one t!ing !ave ++l re+ly on it t!en issue anot!er 0udgment t!atcontradicts t!is. "finality and consistency at least btwn same two +arties&

wo main conce+ts:

6laim +reclusion a.=.a. res 0udicata Issue +reclusion a.=.a. collateral esto++el

6laim Creclusion:

eneral conce+t: +recludes a subseBuent claim t!at #M4L? and 64L? !ave been

broug!t in former litigation. claim !as a sufficient relations!i+ to +rior claim '' same factual info "efficiency& already !ad a full and fair o++tny to bring t!is claim....

eneral rule: Hny claim or defense t!at arises out of t!e same t/o as t!e sub0ect matter

at issue t!en it must be litigated now or it will be waived. "Grier&

est is w!et!er t!e GH64HL info is sufficiently related "rat!er t!an legal t!eories&

i.e. is t!ere a continuous story t!at can be told wit! t!e claims;

< as relations!i+ between claims become wea=er t!en t!e efficiency gained from

combining t!em diminis!es... even if t!e second claim raises a different legal issue* see Grier "orignal claim for

re+levin to get towed cars bac=* subseBuent due +rocess violation claim +recluded& !ere +otential meritorious claim t!at was never actually litigated "vs. sim+le claim

+reclusion '' e.g. C recovers damages in suit V)* tries to sue for same in0uries& narrow a++roac!es: same evidenceJ* +rimary rig!tJ

eneral rule: H claim t!at was not a com+ulsory counter'claim "t!us waived if not

+reviously broug!t u+& in a +revious lawsuit will still be +recluded if a decision on itwill t!reaten t!e integrity of t!e +revious 0udgment "includes consent decrees& becauseit attac=s t!e very issue of t!e original claim "$artino&. ustification '' ++l rely on 0udgmnets more of a concern t!an convenience

eneral rule: o determine t!e a++ro+riate +reclusion law to utliliNe t!e court in

w!ic! t!e second suit is broug!t must use t!e +reclusion law of t!e court t!at issued

t!e original 0udgment. AY6ACIK to t!is is t!at if a state court is loo=ing at a federal court ?ITA>#ISaction t!en t!e +reclusion law is t!e #HA law of t!e G>4$ state. 4 state +reclusion law s!ould not a++ly if it is IK6$CHILA wit! federal

interests "e.g. if fed court dismisses for failure to com+ w/ discovery order even ifstate law would not !ave +recluded t!is "unli=ely& would !ave to b/c incom+atiblewit! federal interests in =ee+ing t!e effectiveness of its sanction system&


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In order for a claim to !ave be +recludable it !ad to !ave been ca+able of being

broug!t in t!e original. !us somet!ing t!at is related but !adnDt arisen "installment+ayments not yet due& or somet!ing t!e court couldnDt reside over "court w/ no +owerto grant eBuitable relief* actio broug!t under limited e@+ediated +roceedings&

#ettlement in a consent decreecounts as a 0udgment on t!e merits "$artino&

us! v. 6ity of $a+le Meig!ts "C +recluded from brining

subseBuent +ersonal in0ury claim b/c s!e already awarded damages in ++ty damagefor t!e same accident.

>elated issues/rules:

#ame result '' diff reason for +reclusion: )3"a& is a codified version of +recusionrelating to com+ulsory counter'claims... but in t!is rule one must !ave to filed aCLAH?IK in order to !ave waived a com+ulsory counter'claim t!at wasnDtincluded in t!e +leading. "$artino&

?oesnDt +reclude different +arties from brining se+arate suits '' but in some caescom+ulsory 0oinder 7 >ule )9

If added claim brings w/ it too muc! com+le@ity etc. t!e court can always severclaims into se+arate trials 7 >ule ("b&

6laim Creclusion a++lied:

In original lawsuit: Hs attny need to do your researc! investigate in order todiscover t!e #6CA of t!e matter at !and and t!e +ossible claims t!at 64L? ariseout of it.

?etermining w!et!er +recluded: w!at is t!e sco+e of t!e +reclusion law in t!e 0urist!at rendered t!e 0udgment;

etween same +arties:

Creclusion binds KLS +arties does not bind se+arate individs w!o also !ave interests

arising out of same t/o "due +rocess mar=s boundaries of +reclusion&

In order for +reclusion to a++ly "claim or issue& must !ave been a +arty in t!e orginal

or been in +rivity wit! orignal +arty +rivityJ means t!e substantive law of t!e relations!+ considers H a substitute for

will be bound by 0dugments in w!ic! H +artici+ated* or establis!ed by e@+ressagreement "i.e. a -&* or virtual re+resentation "class laswuit guardian for minor+ossible t!at +erson w!o guided/controlled lawsuit can be considered a +arty&

If no strong legal relations!i+ e@ists +arty is not bound by +rior 0udgment. #ee#earle rot!ers "bros not bound by +rior 0udgment giving ++ty to mot!er b/c notsufficient legal relations!i+ w/ orignal +arty "biN +artners w/ t!eir fat!er& event!oug! t!ey actively +artici+ated in t!e lawsuit&


36/41

Kote t!oug! subseBuent litigant not a +arty will not be +recluded does !ave to worry

about C>A6A?AK "i.e. difficult case&

Kote if you see somet!ing li=e t!is coming as= for continuance on current suit 7 get

a 0udgment t!at binds all +arties invovled.

udgment !aving +reclusive effect must be: Ginal 0udgment on t!e merits

Ged court treasts )"b&"1& dismissal as on t!e merits* state court varies "6H does notunder -eidatN&

?iversity claims get confusing b/c !ave to a++ly +reclusion law of forum state

argallo: CDs case was dismissed by M state court for violating discovery rules

subseBuently broug!t suit arising under fed statute in fed court Creclusive law: fed court a++lies +reclusive law of state rendering 0udgment "M&

ut b/c t!e same fed statute was at issue b( V) s!oud not !ave been in state court

6ourt !as to evaluate !ow M +reclusion law would !ave treated a 0udgment from

a court t!at lac=ed 0uris over t!e matter 6ourt concludes by M law '' 0udgment by court t!at !ad no sub0 matter 0uris over

t!e action !as no +reclusive effect C allowed to continue !is suit in fed court no +reclusion.

udgments 6laims t!at #M4L? K be given +reclusive effect 7 0uris dmismissal

Creclusion cases:). loo= first 7 is t!e 6LHI$ +recluded;. if not is t!ere an issue t!at is +recluded;

I##4AC>A6L4#IK< li=e claim +reclusion in t!at it involves fact* goal is to +revent inconsistent findings insubseBuent litigationlac= letter law Z Car=lane "incentive +rong&:

?etermination on an issue is +recluded in subseBuent actions btwn +arites w!en:

#ame issue of fact or law in bot! cases Keed to loo= at t!e 6KAY of t!e issue in bot! cases "e.g. civil/criminal

burdens of +roof& Hre t!e C>6A?4>HL settings sufficiently similar;

?oes t!e issue mean t!e same t!ing in bot! conte@ts;

A.g. fraudJ in admin !earing vs. a civil trial

!ere +arties !ad adeBuate incentive and o++tny to litigate issue "Car=lane& as H64HLLS litigated and determined by $ay be satisfied by substantial +artici+ation in adversary contenst w!ere +arty !ad

o++tny to defend !imself on t!e merits but c!ose not to "In re #ammy ?aily& < diff t!an claim +reclusion w!ere +reclusion a++lies even if never litigated "Grier&

H valid and final 0udgment and !e determination was essential to t!e 0udgment


37/41


38/41

law of t!e case "one s!ot at a++eal for legal contention '' necessary remember +artycan a++eal from order involving in0unction t!oug! not a final 0udgment could benever'ending a++eals&.

udicial esto++el: once a +arty ta=es a +osition of a GH64HL contention underoat! t!e +arty benefitted from t!e courtDs ado+toin of its factual contention and it

was done intentionally to mislead 7 esto++ed from ta=ing an inconsistent +osition Kot all courts use t!is.

Gull Gait! and 6redit

)238 Z Hrticle IT of t!e const: ensures t!at any court gives 0udgments from sister'

courts t!e full'fait! and credit t!at t!ey would be given in t!e sister'court 0uris itself.

!is includes t!e sister'courtDs +reclusion laws.

uris issues +ose an interesting +rob '' because t!ey are issues of w!et!er a

claim/+erson is rig!tfully before a court.

H court must give a sister courtDs 0udgment full'fait! and credit even on 0uris issue

"+ersonl and #$& IG t!e issue was fully and faily litigated in t!e original action

"?urfee v. ?uc=&. Mowever t!is creates a !ole if t!e +erson w!o wants to c!allenge 0uris doesnDt a++ear

and doesnDt litigate t!e issue s!e can +ossibly do a collateral attac=.

>evisist after +ersonal 0uris section but main t!ing to =now is t!at once a +arty !as t!e

fully CC>4KIS to contest an issue t!en s!e is bound by t!at. In some cases t!eo++tny will !ave been enoug! t!ose was not actually litigated. o be continued...

Mowever t!ere are e@c+etions to being bound to a 0udgment 7 1F

!is rule +rovides under LI$IA? circumstances t!e ability to bac= to t!e

>IIKHL court and get cliam re'o+ened.

< t!is does not allow a +arty to go to different court to get case re'o+ened. Hlt!oug! t!is rule does not ma=e a distinction between default/full 0udgments in

+ractice easier to re'o+en default 0udgments.

!is ensures t!at ++l are not bound to a !orrible 0udgment but ma=es it !ard enoug! to

re'o+en a 0udgment t!at still +rovides certainty in t!e system. C+l !ave to be able to goon w/ t!eir lives and rely on a 0udgment once it is given.

!ere are certain situations relating to issues of evidence at trial "fraud mista=e etc&

t!at can be broug!t u+ 4 !ave a ) yr s.o.l.

CA>#KHL4>I#

Oualification to t!e GG6: doctrine of collateral attac=: state S need not give a 0udgment by state Y GG6 if state

@ did not !ave 0uris to render suc! 0udgment "+ersonal 0uris and sb0&

Cennoyer: early case establis!ed t!e need for a court to establis! +ersonal 0uris over a

+erson b( binding !im to a 0udgment.

6ollateral'attac= 7 t!e ability for a +erson to c!allenge in court S ' t!e validity of a

0udgment rendered by court Y for lac= of +ersonal 0uris so long as t!e +erson nevera++eared to c!allenge t!e 0uris issue.


39/41

4nderlying issues: due +rocess of t!e )(t!"state canDt bind someone w/ giving t!em

due +rocess '' need +ersonal 0uris as +art of t!at&* sovereignty "states !ave +wr w/int!eir own territories are allowed to reguate civil matters w/in '' status of its citiNensrig!t to - !ow one can - !ow one can transfer ++ty etc&

?ue +rocess limits t!e +ower of fed courts to reside over some cases

#$:

4nli=e +ersonal 0uris w!ere fed 7 state "based on ?Ds relations!i+ to t!e forum state

regarldess of w!et!er suit is broug!t in state/fed court&

#$ is +articular to a court '' basically fed court !as limited 0uris '' t!is is due to t!e

+rinci+le +rominent t!roug!out const t!at fed gov is of limited enumberated +wr. Hricle III establis!es t!e +wr of fed courts '' #6 and says congress can set u+

additional org)33) statute t!at sets u+ fed districts courts. ives it subset of sm0 t!at article III

gives to t!e fed courts.

#$ v. +ersonal ?iff for state and fed courts v. fed7state 6an be raised at any time during t!e indiv life of t!e lawsuit v. rasied first time or

waived 7 see )"!& $otley "#6 dismissed case on a++eal from fed trial court 0udgment b/c

Documents

Civ Pro Yeazell SP 2004 4