8/18/09

1. Legal Doctrine
Federal Rules of Civil Procedure (FRCP)
Federal Rules of Evidence (FRE)
Federal Rules of Appellate Procedure (FRAP)

- Enacted by the Supreme Court, Congressional Delegation

2. Thinking Like a Lawyer

- identifying sources of legal doctrine
- understanding the meanings and implications for individual cases/fact patterns
- communicating the information to another (client, lawyer, etc)
- persuading a decision maker to adopt the analysis (“legal argument”)

- - - - - - - - - - -

Federal Court System

- Bankruptcy Courts: limited or special jurisdiction
- US District Court: general jurisdiction
- US Court of Appeals: 13 circuits which handle all of the districts
- US Supreme Court: only handles issues of federal law from state rulings

How to get your case into a Federal Court:

1. Claim Based on Federal Law
2. Diversity Claim

Certiorari: court of appeals hearing a claim

 8/21/09
Remedies

Why do we care so much about remedies?

Determining what remedies your clients are seeking will establish whether or not it’s
worthwhile pursuing any litigation; they are the underlying source of court conflict

“Substance” vs. “Procedure”

Substance: What are the elements? What facts need to be proven? What are the laws?
Procedure: What has to be done to obtain a particular end result, using the substantive aspects?

Specific Remedies: seek to restore specifically what the defendant () has taken from plaintiff (π)
- Injunction: court order directed at parties (i.e. restraining order)

Substitutionary Remedies: seek to provide a reasonable compensatory substitute

- Compensatory Damages: best-fit equivalent
- Punitive Damages: aim at punishment for a wrongful act or behavior
- Liquidated Damages:
- Economic Damages: compensate for money lost or paid

Plaintiff can seek for either or both remedies

Substitutionary (“legal”) remedies are prioritized in litigation over specific (“equitable”) remedies
- Injunctions have to be written and enforced, which can be tricky; also intrusive
- Many things are compensated for that can’t be specifically determined (pain, suffering,
emotional distress, etc)

Rule 52: When an opinion is rendered in a bench trial, they have to divide it into “Findings and Facts” and
“Conclusions of Law”
8/25/09
Permanent Injunctive Relief: final remedy, not necessarily literally permanent
Inadequate Legal Remedy (Irreparable Injury): money just won’t cut it
Balancing of Equities / Interests / Hardships: negative impacts of plaintiff vs. defendant

Example: Sigma Chemical v Harris

Where the remedy sought is specific relief, it’s heard (usually) by a judge

Provisional Remedies: sought for and operated during progress of lawsuit (Rule 65), to preserve the
status quo during the pendency of litigation

Preliminary Injunctions: Irreparable injury? Prevail on merits? Balance equities? Public interest?
- A bond must be placed by plaintiff to cover costs should injunction be wrong
Temporary Restraining Orders (TROs): Ex-parte, without notice to other side (for emergencies)
- For emergency situations necessitating prompt action - Short duration

Example: William Inglis & Sons Baking v ITT Continental Baking

 8/28/09
Pleadings/Claims
- Tell initial story of the suit - Set of documents to formally request court grant/deny remedies

Federal Rules of Civil Procedure (FRCP)

FRCP §7(a) list the types of pleadings available

1. A complaint
2. An answer to a complaint
3. An answer to a counterclaim
4. If the court so orders, a reply to an answer

FRCP §7(b) present the rules for motions

1. Complaint - FRCP §8(a) 2. Answer

Example: Haddle v Garrison

Claim (Cause of Action) = Facts + Law FRCP §8

Pleading facts that, if proven, entitle to remedies under some body of law

How can a claim go wrong?

- Jurisdiction (Personal, Subject Matter)
- Venue (which courts are entitled to hear the case)
- Parties’ failure to follow / abuse of the laws
- The law doesn’t allow for recovery of remedy
- The facts fail provability
9/1/09
How can a defendant argue a claim?
- Law
 Motion to Dismiss FRCP §12(b)(6) Failure to state a claim (Demurrer)
 File a Plea
- Facts
 Answer FRCP §8(b) Denial of facts

Rule 12(b) - Peremptory Pleas (defenses to a claim for relief)

(1) lack of subject-matter jurisdiction
(2) lack of personal jurisdiction
(3) improper venue
(4) insufficient process
(5) insufficient service of process
(6) failure to state a claim upon which relief can be granted

Example: Bell v. Novick

Bell v. Novick:
- typical - not much detail - sufficient notice of nature of claim (Notice Pleading)
- short and plain statement

Bell Atlantic v. Twombly:

- more detail and particularity - Fact Pleading - “showing… that pleader is entitled to relief”
- implications? *limited: expensive, jury error *broad: plausibility

9/8/09
Rule 8(a): Short and Plain Statement of the Facts
If you plead something, you have to be able to back it up – cannot lie or guess on a pleading
 Defendant pushing for more facts can destroy a plaintiff’s case at an early stage

Example: Bell Atlantic v. Twombly

Rule 8(d)(2)-(3): parties may make multiple claims regardless of consistency

 Pleadings are early enough that everyone is trying to cover their ass in all respects possible
… amendments can fix it later

Rule 9(b): Fraud or Mistake; Conditions of Mind

In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
 Purpose is to afford the accused notice of the claim and factual ground on which it’s based
With Particularity: fraud or mistake Generally: malice, intent, knowledge, conditions of mind

Fraud Components
1. Knowing
2. False Statement
3. Of Material Fact
4. Intended to Induce Reliance
5. Actual Reliance
6. Injury/Damages

Example: Stradford v. Zurich Insurance 9/11/09

Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
(a) Signature: All documents submitted to the court must be signed by at least one attorney, or
by the party if unrepresented
(b) Representation to the Court: An attorney certifies by signature that everything submitted
(signed, filed, or later advocated), to the best of their knowledge, is reasonable under the
circumstances
(1) Is not being presented for improper purpose (harass, delay, increase cost)
(2) Warranted by existing law, or is a nonfrivolous attempt to extend/modify/reverse
existing law or establish new law
(3) Factual contentions have evidentiary support, or will after reasonable opportunity
(4) Denials of factual contentions are warranted or reasonably based
(c) Sanctions: Sanctions may be issued for violation of the rule
 (1) After notice/reasonable time to respond, court may impose on anyone involved (law
firm MUST be held responsible)
(2) A motion for sanction must be made separately describing the conduct. The accused
party has 21 days to amend their work before the motion can be presented.
(3) Court may order on its own for an attorney to show how he is not in violation
(4) Sanction must be limited to what would deter repetition
(5) Court must not impose monetary sanction against party for violating 11(b)(2)

Example: Walker v Norwest Corp 11(b)(2)-(3) 9/14/09

Christian v. Mattell 11(b)(3)

Responding to the Complaint 9/18/09

Rule 8(b): Defenses; Admissions and Denials see Form 30 in FRCP Appendix
(1): Short and plain statement of defense
(2): Denials – responding to the substance
(3): General (everything) and specific (only parts) denials
(4): Denying part of an allegation
(5): Lacking knowledge or information
(6): Effect of failing to deny – if responsive pleading is required and not denied, admitted as true

Three main types of defendant responses:

1. Denials/admissions of allegations within the complaint
2. Rule 12(b) defenses
3. Rule 8(c) Affirmative defenses

1. Denials and Admissions

- Can be specific or broad (parts of a sentence, a paragraph, entire complaint)
- Plaintiff has burden to prove all elements, so denial is the easiest/most common defense

Example: Zielinski v. Philadelphia Piers Inc

2. Rule 12(b) Defenses

- Problem with pleadings, not facts
- Any of these defenses can be brought through motion or by answer
- If brought by motion, you must file the motion before filing an answer (Pre-Answer Motion)
- Rule 12(g): Joining Motions – if you file 12(b) defense, must all be brought together
- Rule 12(h)(1): If you file a pre-answer and claim 12(b) defense, you must include all
defenses you want to include; you can’t amend/add after
- Rule 12(h)(2): If you don’t file a pre-answer, you can file 12(b)(6) or 12(b)(7) later
- Rule 12(h)(3): You can never waive your right to bring a defense of lack of subject
matter jurisdiction, it’s allowable at any point regardless of pre-answer
- Delays timeframe for having to file an answer

Rule (8)(b)(5) requires investigation prior to submitting the defense to verify you cannot obtain the info
9/22/09
3. Affirmative Defenses
- Assuming fact provability and proper pleading, special circumstances still precludes relief
- Outlined under Rule 8(c) (i.e. Fraud, Statute of Limitations, Estoppel, etc.)
- ** Defendant affirming has the burden of proof **

Example: Jones v. Block

How are affirmative defenses distinct from counterclaims?

- Affirmative Defense: Defense against π’s claim which would result in no recovery for π
- Counterclaim: Claim for relief against π, resulting in recovery for  directly from π

 Some can be both an affirmative defense AND counterclaim (i.e. Fraud)

Rule 8(c)(2): Mistaken Designation: If a defendant mistakenly confuses the two, the court
must treat the pleading as correctly designated and may impose terms for doing so

9/25/09
Rule 15: Amended Pleadings
(a) Amendments Before Trial
(1) A party may amend its pleading once as a matter of course
π:before being served with responsive pleading
: within 20 days after serving the pleading if responsive pleading isn’t allowed
(2) In all other cases, a party may amend its pleading only with the opposing party’s written consent or
the court’s leave. The court should freely give leave where justice so requires

Example: Beeck v Aquaslide

(b) Amendments During and After Trial

(c) Relation Back of Amendments – Post Statute of Limitations

- New claims or defenses: Sometimes a new claim is so closely related to what’s already
been stated that it relates back and can be amended – not unfair to defendant
- Changed defendant: You can substitute a new defendant for an old one if the new
defendant had notice during the early stages of the case that it existed, and new that
they were the rightful defendant to be tried
 Discovery 10/6/09

Pitfalls: Monetary cost, Ancillary cost (i.e. detrimental disclosure), Interrorum effect
Promise: Disclosure of information to give merit to case, Truth & Justice

"relevant to the subject

Scope of Discovery matter involved in the
under Rule 26(b)(1) action": for good cause

"relevant to any party's

claim or defense": baseline

admissable at trial: need not be "if

reasonably calculated to lead to
admissable evidence"

Rule 26(b): Discovery Scope and Limits

(1) Unless otherwise limited, allows parties (without court approval) to seek discovery
regarding nonprivileged material relevant to any claim or defense. If “good cause” can be
shown, discovery can broaden to include anything relevant to the subject matter.

Federal Rules of Evidence (FRE) 401: Definition of “Relevant Evidence”

Evidence having any tendency to make consequential facts more or less probable

- Prejudice can outweigh evidence and so not be admissible at trial

- May not be admissible, but still discoverable -> as long as reasonably calculated to lead to
admissible evidence

Example: Davis v. Precoat Metals

Exclusions of Relevance under Rule 26:

- Where costs of discovery outweigh benefits – Rule 26(b)(2)(b)&(c)
- Trial preparation materials, expert info – Rule 26 (b)(3)&(4)
- Privileged information 10/9/09

Discovery rules are subject to change; parties can alter through agreement, court can order so
 See Rule 29

Rule 16(b) Conference: Scheduling conference required with court (parties attend and meet with judge)
to set calendar for the rest of the case (filing and motion deadlines, trial date, etc)
 Dates subject to change  Must occur near beginning of the process – Rule 16(b)(2)
Rule 26(f) Conference: Meeting between just the parties’ councils; must occur prior to 16(b) conference.
Purpose is to establish a discovery plan which will be presented to the judge
 Allows early potential for settlement  Parties do not have to agree on the plan

Rule 26(b)(1): Relevance: all methods of discovery must be relevant to the claim

Rule 26(a)(1): Mandatory Disclosures: Each party must, without being asked for it, produce certain
information to the opposition which can be used to support claims/defenses of the side providing
(nothing detrimental or harmful to your own case)
(i) Identity and contact info for potential witnesses
(ii) Documents
(iii) Claimant/counterclaimant: Computation of damages
(iv) : Insurance policies

Rule 26(a)(2): Mandatory Disclosure of Expert Witness Information

Rule 26(a)(3): Mandatory Pretrial Disclosures: i.e. List of witnesses, documents exhibited
 Occurs very close to the actual trial date

Rule 26(d)(1): General Discovery: Non-mandatory until specifically requested by opposing party
 Cannot begin until after Rule 26(f) Conference

General Discovery includes Adversarial Methods: Interrogatories (Rule 33), Requests for Production
(Rule 34), Requests for Admission (Rule 36), Depositions (Rule 30, 45), Physical/Mental Exam (Rule 35)
 Can last from a few weeks to a few years depending on the complexity of the case
 Time allowed is set by the court during the Rule 16(b) Conference

Discovery process will typically push parties to file Motions for Summary Judgment (when this can be
done will also be set by the court)

Rule 33: Interrogatories: Used to gather information on the case which wasn’t included in mandatory
disclosures (things that might help your side of the case). Good for obtaining basic information, not good
for detailed information; may yield no valuable information. Limited to 25, but court can increase limit.

Rule 34: Requests for Production: Used to make opposing party provide certain particular materials (i.e.
memos, records, electronically stored information, etc). No limit.

Rules 30 & 45: Depositions: Interviews with parties to obtain testimony; detailed information under
oath by a party with particular knowledge or insight. Might need to issue subpoena (Rule 45).
Subpoena duces tecum: Requires deposed party to bring documents with them
Subpoenas are used to mandate depositions from non party persons

Rule 35: Mental and Physical Examination: Must have court order

Rule 36: Requests for Admission: Written demand that opposing party admits or denies information.
Typically used for information that neither party wants to dispute (non-core issues).
Rule 26(b)(1): Relevant matter
EXCLUSIONS:
- Rule 26(b)(2)(b)&(c): Costs of discovery outweigh benefits
- Rule 26(b)(3)&(4): Trial preparation materials, expert info
- Rule 26 (b)(1): Privileged information

Attorney-Client Privilege: covers any material pursued for the purpose of litigation
- Privacy promotes truthfulness and openness by client
10/13/09
Rule 26(b)(3): Trial Preparation materials, expert info – “Work Product”
Exclusion from the scope of discovery of material that is relevant, but composites the attorney’s work
and preparation for the case; about pursuing as much information as possible while preserving the
adversarial nature of litigation; privacy of work and material promotes more thorough investigation

Example: Hickman v Taylor

Case led to codification of Rule 26(b) 10/16/09

Rule 26(b)(3)(a): Trial Preparation Materials

Makes indiscoverable documents and tangible things (“work product”) that are prepared in anticipation
of litigation or for trial by or for another party or its representative (including the other party’s attorney,
consultant, surety, indemnitor, insurer, or agent) HOWEVER, they may be discoverable if:
(i) They are otherwise discoverable under Rule 26(b)(1); and
(ii) The party shows that it has substantial need for the materials to prepare its case and
cannot, without undue hardship, obtain their substantial equivalent by other means

** What constitutes undue hardship? What would be the substantial equivalent? **

Rule 26(b)(3)(b): Protection against disclosure

If the court orders discovery of those materials, it must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative
concerning the litigation

** What if the document is a memorandum which contains hints of the attorney’s mindset? **
- Scrap the whole thing, court can blackout sections, etc

Discoverable Exclusions under Rule 26(b)(3):

ALWAYS excluded: mental impressions, conclusions, opinions, legal theories
SOMETIMES excluded: documents and tangible things prepared in anticipation of trial
NEVER excluded: mere facts, info not in documentary form

Rule 26(b)(4)(b): Expert Info

A party may not, by interrogatories or deposition, discover facts known or opinions held by an expert
who has been retained or specially employed by another party in anticipation of litigation or to prepare
for trial and who is not testifying. But a party may do so only:
i) As provided in Rule 35(b) – court ordered mental/physical examinations; or
ii) On showing exceptional circumstances under which it is impracticable for the party to
obtain facts or opinions on the same subject by other means

Example: Thompson v Haskell Chiquita Int’l v Bolero

 10/23/09
Rule 26(c)(1) General
- A party or any person from whom discovery is sought may move for a protective order
- The motion must include a certification that the parties have in good faith conferred or
attempted to confer in an effort to resolve the issue
- A court, upon showing good cause, may issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one or more of
the following:
a) Forbidding the disclosure or discovery;
b) Specifying terms, including time and place, for the disclosure or discovery;
c) Prescribing discovery method other than the one selected by the party seeking
discovery;
d) Forbidding inquiry into certain matters, or limiting the scope of disclosure or
discovery to certain matters;
e) Designating the person who may be present while the discovery is conducted;
f) Requiring that a deposition be sealed and opened only on court order;
g) Requiring that a trade secret or other confidential research, development, or
commercial information not be revealed or be revealed only in a specified way; and
h) Requiring that the parties simultaneously file specified documents or information in
sealed envelopes, to be opened as the court directs

This is a non-exhaustive list; court has discretion to determine further instances

Party seeking protective order has burden to show good cause for it (that one or more of these
requirements exists)

To Show Good Cause:

- party must submit a particular and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements

Example: Stalnaker v Kmart

Rule 26(b)(2)(c): Limitations on Frequency and Extent piggy-backs on Rule 26(c)

On motion or its own, the court must limit the frequency or extent of discovery otherwise allowed by
these rules if it determines that:
i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from
a more convenient/less burdensome/less expensive source
ii) the party seeking discovery has had ample opportunity to obtain the information by
discovery in the action
iii) the burden or of the proposed discovery outweighs its likely benefit

The courts have read relevance into this rule, based on Rule 26(b)(1)
 10/27/09
Rule 26(g): Certification; Sanctions & Penalties equivalent of Rule 11 for Discovery
- disclosures, discovery requests, discovery responses/objections must be signed
- signature = certification that:
- it’s complete and correct (if disclosure)
- it’s consistent with the Rules and warranted by law
- it has no improper purpose
- it’s not unreasonable or unduly burdensome/expensive
- improper certification = appropriate sanction

Rule 37(a): Motion to Compel mirror image of Protective Order

- requires good-faith conferral between parties prior to involving the court (like Rule 26c)
- includes presumption that losing party is responsible for the expenses

Rule 37(b): Sanctions for Failure to Comply with Court’s Discovery Orders
- allows for flexible sanctions (i.e. default judgment, dismissal of case)

Rule 37(c): Sanctions for Failure to Make Mandatory Disclosures, Supplements

- presumptive sanction = if you fail to disclose something, you cannot use it as evidence

Rule 37(d): Sanctions for Failure to Respond to Discovery (depositions, interrogatories, requests)
- good-faith conferral requirement
- flexible sanctions

Rule 37(e): No Sanctions for e-Discovery Lost in Routine Course of Business

- does not apply when there is negligence

Example: Zubulake v UBS Warburg

There is no Rule which allows courts to impose sanctions for failure to protect evidence. It comes about
from their inherent power.
10/30/09

Who gets to decide important issues; Judge or Jury?

Does it make a practical difference? Why?

U.S. Constitution, Amend. VII (1791)

Right to Trial by Jury Clause: In common law suits (Federal Court & Civil suits only), where the value in
controversy exceeds $20, right of trial jury is preserved
Reexamination Clause: No fact tried by a jury shall be reexamined in any court, other than common law

- although this amendment applies only to Federal Courts, States have established their own
constitutions incorporating Right to Jury Trial clauses to some extent
- the issue of Right to Jury Trial in criminal suits is held within the Sixth Amendment

Why was it important to preserve right to jury trial in civil lawsuit, instead of relying on a judge?
- participation by citizens - fairness - diversity of viewpoints - check on gov’t power
- distrust of judges/legislature
Court System in England c. 1791
Courts of Common Law (“law”)  Juries  “legal” claims / Substitutionary remedies
Courts of Chancery (“equity”)  Judges  “equitable” claims / Specific remedies

Example: Teamsters v. Terry 11/3/09

Parties can try and end a suit before it reaches trial – Motion for Summary Judgment

Summary Judgment
Rule 56: Motion for Summary Judgment
(c) The judgment shall be rendered if the pleadings, discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact (after adequate
time for discovery) and that the movant is entitled to judgment as a matter of law

Scenario 1:  has slam-dunk evidence

- Summary judgment is appropriate

Scenario 2:  has no irrefutable evidence; π has not been able to produce any evidence of ’s liability
- Is summary judgment appropriate? YES

Example: Celotex v. Catrell

Just as  can win MSJ with slam-dunk evidence, so can it be won if π has no evidence to support claim

At this point in time there has been ample time for discovery.  can request MSJ from Judge
-  now has burden of proof to show that π doesn’t have admissible evidence to prove case

What about when there is some (“modicum” or “scintilla”) evidence?

Courts will usually say that this is enough to overcome MSJ

What evidence counts as showing no issue as to any material fact? (contained within Rule56c)
- Pleadings
- Discovery and disclosure materials on file
- Affidavits
11/10/09
* Burden of Proof * Burden of Production

Partial Summary Judgment: Within a multiple claim suit, MSJ can be rendered to some and not others

MSJ can also be rendered on an a particular issue within a claim

- If the issue is essential to the claim, than the π will likely lose the whole thing

MSJ can also be rendered as an affirmative defense (shifts the burden of proof and production)

MSJ can be granted in favor of the π but is very difficult

- based on production of so much evidence by π and so little evidence by  that no jury could
ever question the issue)
Judgment as a Matter of Law
Rule 50: Judgment as a Matter of Law
(a) Directed Verdict
(b) Renewed Judgment as a Matter of Law (Judgment notwithstanding the verdict)

Has the nonmoving party (typically the one with the burden of proof) provided enough evidence?

Rule 50 (a): Judgment as a Matter of Law (aka Directed Verdict)

(1) If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable
jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court
may;
(A) Resolve the issue against the party; and
(B) Grant a motion for judgment as a matter of law against the party on a claim or defense that,
under the controlling law, can be maintained or defeated only with a favorable finding on that
issue
(2) A motion for judgment as a matter of law may be made at any time before the case is submitted to
the jury. It must specify the judgment sought and the law and facts that entitle the movant to the
judgment.

Judge is not supposed to assess credibility of testifying witness in making a decision for directed verdict

Where there is a direct conflict in the evidence, it must be left to a jury

Where there is NO conflict in the evidence whatsoever, directed verdict is acceptable during trial

Example: Pennsylvania Railroad v Chamberlain

- It is essentially a summary judgment ruled during trial

- Can only be granted upon a motion (cannot be done sua sponte)
- Can be granted on all or partial claims or issues or defenses

Why would a court grant a JML during trial if it has already denied the MSJ?
- Perhaps some evidence has shifted (i.e. testimony, judge’s ruling on inadmissibility of evidence, etc)
- Before FRCPs were enacted, MSJ was very rare and Directed Verdict was far more common
o Rules of Discovery have changed, back then evidence wasn’t admitted until trial

11/13/09
If JML is denied, suit goes before jury, jury rules in opposition’s favor – Renew JML

Rule 50 (b): Renewed Motion for JML (aka Judgment notwithstanding the verdict - “JNOV”)
- Can be filed within 10 days after the judgment on jury verdict
- Movant must have made a pre-verdict motion for JML during trial
- Same criteria as JML (no legally sufficient evidentiary basis)

Why must there have been a pre-verdict motion?

7th Amendment: No fact tried by a jury shall be otherwise reexamined
New Trial
Rule 59 (a)(1): Grounds for New Trial
(A) The court may grant a new trial on all or some of the following issues after a jury trial, for any
reason for which a new trial has heretofore been granted in an action at law in federal court
1) Procedural error (e.g. improper admission of evidence)
2) Legal error (e.g. $500 verdict on a $1’000 bad check)
3) Verdict is “against manifest weight of the evidence” (standard is lower for
“reasonableness” in granting a new trial than for granting JML)

Rule 50 (b)-(c): Allows grant of post-verdict JML and conditional grant of a new trial
If JML is overturned on appeal, new trial occurs

Remittitur: π has choice of new trial or reduced damages

Additur:  has choice of new trial or increased damages
11/17/09

Appeals
(1) Who has the right to appeal? (standing)
(2) When may an appeal be taken? (jurisdiction)
(3) How much scrutiny will an appellate court apply to a trial court’s decision? (scope)

(1) WHO: Standing to Appeal

Party may appeal only from an adverse judgment
For π: you do not get all the relief you are asking for
For : π gets at least some of the relief it is asking for

Cross-Appeal: both parties appeal the judgment

(2) WHEN: Appellate Jurisdiction

Appeals lie from judgment of the court, not jury verdict (on the grounds of judicial – not jury – error)
E.g. erroneous instructions, erroneous admission of evidence, failure to grant SJ or JML, etc

Exception: Can point to jury verdict when dealing with punitive damages

7th Amendment Re-Examination Clause: No fact tried by a jury shall be otherwise reexamined
So instead you appeal on the grounds of the judge’s screw up

Final Judgment Rule: A party can only appeal from final judgment, with some exceptions (jurisdictional).
An order is not a final judgment unless it fully disposes of all final relief sought by all parties.
Interlocutory Order: Any court order that’s not final judgment (appealable after final judgment)

28 U.S.C. § 1291: Appellate courts have jurisdiction of appeals from decisions of the district courts
If the final judgment rule is not met, the court has no power to hear the appeal

Example: Liberty Mutual v. Wetzel

Exceptions to Final Judgment Rule: 11/20/09
- Judgment on Multiple Claims - Rule 54(b)
- Orders regarding injunctions per 28 U.S.C. § 1292 (a)(1)
- Special interlocutory appeals per § 1292 (b)

Rule 54 (b): Judgment on Multiple Claims

When an action presents more than one claim for relief, the court may direct entry of a final judgment
as to one or more, but fewer than all, claims if the court expressly determines that there’s no just reason
for delay. - requires multiple claims, not multiple types of relief sought on a single claim (Wetzel)

Triggering circumstance: court enters judgment on one or more, but fewer than all, claims in case
involving multiple claims or multiple parties

Procedural requirements:
- Court directs entry of final judgment
- Court expressly determines that there is no just reason for delay

28 U.S.C. § 1292 (a)(1): Orders regarding injunctions

Triggering circumstance: court enters an order granting, continuing, modifying, refusing or dissolving
injunctions, or refusing to dissolve or modify injunctions

Procedural requirements:
- Court directs entry of final judgment
- Court expressly determines that there is no just reason for delay

28 U.S.C. § 1292 (b): Special interlocutory appeals

Triggering circumstance: District court enters order:
- Involving controlling questions of law
- On which there is substantial ground for difference of opinion (law is undecided/unclear)
- From which an immediate appeal may materially advance the ultimate termination of the litigation

Procedural requirements:
- District court certifies in writing that order meets these requirements
- Appellant applies to the Court of Appeals within 10 days of the order being appealed
- Court of Appeals agrees to hear appeal

Writs of Mandamus: An original action brought directly in appellate court by the party that wants
review of something from the trial court – orders public official to perform an act required by law (very
rare and hard to bring the action) i.e. when trial jury has been denied

Triggering Circumstance: District Court has either:

- Gone beyond the lawful exercise of its prescribed jurisdiction; or
- Has refused or failed to exercise its authority when it has the duty to do so

Procedural Requirement: Party seeking writ (“petitioner”) files separate action in appellate court,
naming the trial judge as the defendant
Collateral Order Doctrine:
Triggering Circumstance: District Court enters order that:
- Conclusively determines the disputed question
- Resolves an important issue completely separate from the merits of the action (e.g. procedural)
- Is effectively unreviewable on appeal from a final judgment

Example: Lauro Lines v. Chasser

Scope of Appellate Review

28 U.S.C. § 2111: Harmless Error Rule

Appellate Court will not reverse a trial court’s decision even if it erred unless that error significantly
affects the substantial rights of the parties

Appellate Court will be more or less strict depending on the nature of the trial court’s decision

Standards of Review for Appellate Court to Reverse:

- Findings of fact  must be clearly erroneous (appellate court takes judge’s word on a lot of things
as they were there and heard the actual testimonies, etc)

- Rulings of law  will not defer to trial judge’s rulings at all (making rulings of law is part of the
appellate court’s job and therefore doesn’t need to rely on trial court’s decision)

- Applications of law to fact  no deference at all even though there’s a factual component (when
there is a legal component, appellate court should not have to be bound to trial court’s decision)

- Discretionary decisions  will defer to trial court unless there’s been an abuse of discretion

Rule 52 (a)(6): Setting Aside the Findings

Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly
erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the
witnesses’ credibility

Clearly Erroneous:
When although there is evidence to support the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has been committed; where there are two
permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous

Example: Anderson v. Bessemer City