CIVIL PROCEDURE CLASS 21

1. CIVIL PROCEDURE CLASS 21 Professor Fischer Columbus School of Law The Catholic University of America November 1, 2001

2. WRAP-UP OF LAST CLASS • We finished our discussion of summary judgment as one type of pretrial adjudication • We learned about voluntary and involuntary dismissals as another form of pretrial adjudication • We began to learn about directed verdictsas yet another kind of preetrial adjudication

3. WHAT WILL WE DO TODAY? • Continue to learn about directed verdicts • Learn about various methods for judicial control of juries, including special verdicts, remittitur/additur, and bifurcation/trifurcation • Learn about motions for j.n.o.v. • Learn about new trial motions • Learn about motions to vacate judgment • Time permitting, begin our study of res judicata

4. USEFUL DIAGRAM p. 414 Glannon • Shows you sequence of trial and directed verdict/j.n.o.v. motions

5. PENNSYLVANIA RR v. CHAMBERLAIN (1933) • What was the plaintiff’s claim in this action? • Which party moved for a directed verdict? • When did this party move for a directed verdict? • Could this party have moved for a directed verdict earlier? Why or why not?

6. PLAINTIFF’S THEORY OF LIABILITY • What was plaintiff’s theory of liability? • What evidence supported the plaintiff’s theory? • What evidence supported the defendant?

7. CHAMBERLAIN: RULINGS • How did the trial court rule on the motion for a directed verdict? • Did the Court of Appeals reverse or uphold the trial court? • What was the basis for Swan’s dissenting opinion • What about the Supreme Court?

8. CHAMBERLAIN • Was the Supreme Court making a judgment as to plaintiffs’ and defendants’ credibility? • If so, is that proper? • Is there reason to suspect the credibility of the RR workers’ (on the 9 string of cars) testimony?

9. ANOTHER USEFUL DIAGRAM • P. 411 Glannon • Diagram was originally drawn by a famous professor of Evidence, Professor Wigmore, in the 1940s. • What is the Burden of Production • What is the Burden of Persuasion?

10. HYPO • Assume that Bainbridge claimed to be standing right next to where death occurred and testified to having directly witnessed the collision, but D presented 25 witnesses, including a busload of visiting priests, who contradicted Bainbridge’s story. • Should the court direct a verdict for the RR?

11. THE TRIAL CALENDAR • FRCP 40: local rules govern placing actions on the trial calendar • Usually, P files memo stating that pleading is completed/filed. • Some cases get preferential treatment on the trial calendar • Placing a case on the trial calendar does not equal assigning the case a trial date • There are separate jury and non-jury trial calendars

12. JURY TRIAL • (Review) Right to a jury is governed by Amendment VII of the U.S. Constitution • The procedure for demanding a jury trial is in FRCP 38 (note timing requirements) • Failure to TIMELY demand a jury trial results in waiver under FRCP 38 • If the parties fail to demand jury trial, does this mean that the court has no discretion to order jury trial? See FRCP 39 • Parties can stipulate to a non-jury trial after one party has demanded a jury trial - FRCP 38

13. SELECTING A JURY • First order of business in a jury trial is to select a jury (voir dire) -- (See FRCP 47; Slides for Class 23) • REVIEW: Are 12 members required for a jury in a civil case? If not, what is the minimum number of jurors permitted under the FRCP? See FRCP 48.

14. CIVIL JURY TRIALS • After choosing a jury, the procedure is usually as follows (depends on local rules) • 1. Ps opening statement (usually goes first) • 2. Ds opening statement (option to do this after P’s direct evidence) • 3. P presents direct evidence (D can cross-examine) • 4. D may move for a directed verdict • 4. D presents direct evidence (P can cross-examine) • 5. P presents rebuttal evidence • 6. D presents rebuttal evidence • 7. P or D may move for a directed verdict. Assuming no successful directed verdict motion, closing arguments (usually P speaks first and last) • 8. Jury instructions (judge could also instruct in beginning and at end)

15. BENCH TRIALS • Less formal procedure than jury trials • Often, the judge does not require/permit opening statements or closing arguments. Why do you think this is the case? • Obviously, there is no need for jury instructions in a bench trial!

16. EVIDENCE • Types of evidence include: • 2. Deposition testimony • 3. Documents • 4. Other relevant items • Elaborate rules of evidence apply to determine what is and what is not admissible • There are Federal Rules of Evidence • Many states follow these federal rules

17. CLOSING ARGUMENTS • Because evidence is presented in a piecemeal fashion, it is hard for the jury to get a coherent picture of the case • The purpose of closing arguments is to give the jury such a coherent picture of one party’s case • Is is acceptable for closing arguments to be highly emotional? • Can closing arguments include facts not in evidence?

18. Judicial Control of Juries in Jury Trials • 1. Jury Instructions • 2. Special Verdicts • 3. Bifurcation/Trifurcation • 4. Remittitur/Additur

19. JURY INSTRUCTIONS (Rule 51) • What is a jury instruction? • When are jury instructions given? • Parties usually submit proposed jury instructions and the court determines the final jury instructions • Pattern jury instructions are mandatory in some jurisdictions • If you want to appeal based on faulty jury instructions, you must object before jury retires to consider its verdict

20. QUESTIONS ON JURY INSTRUCTIONS • Can a judge instruct a jury that the plaintiff should win? • Can a judge summarize the evidence in jury instructions? • What happens after the judge instructs the jury?

21. JURY DELIBERATIONS • Jury retires to deliberate, usually under the supervision of the bailiff • In civil cases, jurors usually are permitted to leave for the night. • However, when jury deliberations are recessed, the judge will tell the jury not to discuss the case to anyone and not to read media coverage of the case

22. VERDICTS • What is a general verdict? • What is a special verdict? SEE FRCP 49 • What is a general verdict with interrogatories? SEE FRCP 49 • What are the advantages and disadvantages of special verdicts? • Sometimes the judge polls the jury to make sure the verdict is agreed on by the required number of jurors • How many jurors must agree on the verdict in federal court? SEE FRCP 48

23. JURY DEADLOCK • What happens if the jury cannot agree on a verdict?

24. BIFURCATION • FRCP 42(b) • Bifurcation: liability and damages • Trifurcation: causation, liability, and damages • What should a court take into consideration in determining whether to bifurcate a trial? • Must birfucated trials be tried before the same jury? • What are the advantages of bifurcation? • What are the disadvantages of bifurcation?

25. REMITTITUR/ADDITUR • What is remittitur? • What is additur? • In Dimick v. Schiedt (1935), the Supreme Court considered the constitutionality of additur. Found that it was not constitutional but suggested it would allow remittitur to stand. • Has since given mixed signals about whether it will continue to hold additur unconstitutional.

26. J.N.O.V. • J.N.O.V. stands for the Latin: judgment non obstante veredicto • What is another name for a J.N.O.V.? • Governing FRCP: 50(b) • Effectively overturns the jury verdict where no reasonable jury could find for the party who won the verdict • What prerequisites exist for a J.N.O.V.?

27. J.N.O.V. HYPO • Plaintiff Pedestrian sues Defendant Driver for negligent driving. Pedestrian has put on its evidence and rested its case at trial. Defendant Driver moves for a directed verdict. The ground for the motion is absence of evidence of unreasonable care. Why would it make sense for the judge to deny the first motion for a directed verdict and then, if the jury finds for P, grant D’s motion for a j.n.o.v.?

28. IS A J.N.OV. CONSTITUTIONAL? • Remember Amendment VII: “No fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of common law.” • The U.S. Supreme Court has held that there was a common law analogue to the directed verdict but no DIRECT common law analogues for the j.n.o.v. • So is a J.N.O.V. constitutional? Why or why not?

29. SAVING LANGUAGE IN RULE 50(b) • “If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion.”

30. NEW TRIAL MOTIONS • FRCP Rule 59 • What are the time limits for making a motion for a new trial? • What are the grounds for granting a motion for a new trial? • Can a judge grant a new trial on its own initiative? In what circumstances? What time limits apply? See FRCP 59(d).

31. GROUNDS FOR GRANTING A NEW TRIAL INCLUDE: • Judge realizes he mistakenly admitted evidence over correct objection • Newly discovered evidence • Judge realizes she wrongly instructed jury over correct objection (see FRCP 51) • Verdict against the weight of the evidence • Excessive/inadequate verdict (see remittitur/additur above)

32. ADDITIONAL GROUNDS FOR NEW TRIAL • Improper conduct by counsel or judge • Jury misconduct (e.g. verdict not unanimous/inconsistent) • When can misconduct in a jury’s deliberations be grounds for a new trial? To what extent is what is said in the jury room admissible? See Fed. R. Ev. 606(b) at CB p. 510 • Do you agree that Fed. R. Ev. 606(b) strikes an appropriate balance?

33. MOTIONS TO VACATE JUDGEMENT • FRCP 60 - judgments may be vacated both for clerical mistakes (60(a)) and other reasons set out in 60(b) • Can you move for a j.n.o.v., new trial, and motion to vacate judgment at the same time?

34. CLERICAL MISTAKES IN JUDGMENTS OR ORDERS • FRCP 60(a) • When can courts correct clerical mistakes in judgments, orders, or other parts of the record? • What is a “clerical mistake”?

35. 60(b): OTHER REASONS FOR VACATING JUDGMENT • 2 categories of motions: • 1. Motions based on some grounds are subject to a timing limitation that they must be made no more than 1 year after entry of judgment or order: which grounds are these? • 2. Motions based on the other grounds for a 60(b) motion must just be made within a “reasonable time”. Which are these?

36. PRACTICE EXERCISE 20 • CB p. 530

37. CATCH-ALL CATEGORY: FRCP 60(b)(6) • “for any other reason justifying relief from the operation of the judgment” • reserved for extraordinary circumstances • Can the catch-all category be used for motions that would also fit within another 60(b) category?

38. EXPLORING THE SOUNDNESS OF JURY-CONTROL MECHANISMS • You are a member of a new organization, Save American Juries, made up of lawyers, judges and legal scholars who have organized to find ways to engender due respect for the right to jury trial in civil cases and lobby legislators to protect that right. • Take realistic positions on the motions for directed verdict, j.n.o.v. and for a new trial. Be prepared to defend these positions.

39. CLAIM PRECLUSION • Also known as the doctrine of res judicata • What is res judicata? • What is the idea of “merger” and “bar” - see Restatement (2d) of Judgments s. 17 at CB p. 885 • What is the purpose of res judicata? • What does FRCP 8 (c ) say about res judicata? Why? • NB. Res judicata can be waived!

40. CLAIM PRECLUSION V. ISSUE PRECLUSION • What is the basic difference between claim preclusion and issue preclusion? (see CB p. 884) • What is the difference between claim preclusion and stare decisis?

41. CLAIM PRECLUSION • Does claim preclusion extend to claims only to claims that were made in the first lawsuit, or does it also extend to claims that could or should have been litigated in the first lawsuit?

42. ELEMENTS OF RES JUDICATA • 1. Prior suit that proceeded to a final valid judgment on the merits • 2. Present suit arises out of same claim as the prior suit • 3. Same parties to both suits, or parties are in privity

43. FINAL VALID JUDGMENT ON THE MERITS • VALID: To be valid, court rendering judgment must have valid subject matter and personal jurisdiction (if action dismissed for lack of p.j. or s.m.j., no claim preclusion for action brought in court with p.j. or s.m.j.) • You can’t argue that a judgment is invalid simply because it was based on error, e.g. relying on unconstitutional statute

44. FINALITY OF JUDGMENT • There must be nothing left for judge to do but enter judgment • Will a judgment determining liability be final for claim preclusion before damages have been adjudicated? • What about dismissal of one of Ps claims, if the other claim is allowed to continue? • Will the grant of preliminary injunctive relief bar an action for permanent injunctive relief for the same claim? • Does an appeal destroy finality?

45. JUDGMENT ON THE MERITS • Disposition based on validity of Ps claim rather than technical procedural ground • Is a judgment entered after a full trial on the merits? • Summary judgment? • 12(b)(6) dismissal? 12(b)(2) dismissal? • Voluntary dismissal under FRCP 41(a)? • A second voluntarily dismissal under FRCP 41(a)? • Dismissal for failure of prosecution under FRCP 41(b)?

46. SAME CLAIM • Federal courts employ a “transactional” approach to determining whether the claim in the first suit is the same as the claim in the second suit. • Describe this “transactional” approach (See Restatement (2d) of Judgments s. 24) • NOTE IT BASICALLY MIRRORS THE JOINDER RULES

47. SAME PARTIES/PARTIES IN PRIVITY • What is the test for when a party is in privity with another party for the purposes of res judicata?

48. Gonzalez v. Banco Central Corp. (1st Cir. 1994) • What are the key facts? • What is the procedural history? • What is the issue on appeal? • Did the Gonzalez plaintiffs win their appeal?

49. Gonzalez: Final/Valid Judgment on the Merits • Did the 1st Circuit find that there was a final judgment on the merits in the earlier Rodriguez suit?

50. Gonzalez: Same Claim • Did the 1st Circuit find that the claims asserted in the Rodriguez suit were the same as in the Gonzalez suit? • Why or why not?