Agenda for 10th Class

1. Agenda for 10th Class • Admin • 4 Handouts • Langbein, “German Advantage in Civil Procedure” • 1995 Exam, Part II • Polinsky on Settlement • Slides • Name plates • Intro to • New Trial • Appeals • Review of Sanctions • Summary Judgment • Celotex • Bias • JMOL • Penn

2. Assignment for M 10/21 I Appeals Skim FRCP 61; 28 USC 1291, 1292, 2111 Skim Yeazell 674-703 (skip cases) Read carefully Yeazell 703-713 Questions to think about Go back through all the cases read so far in Civil Procedure If the case was decided by an appellate court, what standard of review did the court use and why? If the case is not explicit about the standard of review, what standard should the court have used? If the case was decided by a trial court, what standard of review should an appellate court use if the issue(s) resolved in the case were appealed? Note that if more than one issue is appealed, the appellate court may apply different standards of review to each issue. Briefly summarize Anderson and Harnden In your summary of Harnden, include an answer to Yeazell p. 712 Qs 1f, 2 How could you argue that the district court judge’s error in Harnden was not harmless? In doing so, consider why it is important that an expert report be submitted in the form of an “affidavit or sworn statement.” 2

3. Assignment for M 10/21 II Appeals It is relatively easy for a district court’s decision to grant JMOL to be overturned on appeal (because the standard of review is de novo) but relatively hard for a district court’s decision to grant new trial to be overturned on appeal (because that decision is reviewed under the more deferential “abuse of discretion” standard” and may not be reviewable at all until after the second (or third or fourth) trial). Does this make sense? Why or why not? Assuming that the jury returned a verdict for the plaintiff and that the defendant moved for JMOL and new trial, who can appeal in each of the following 4 situations and when. Judge grants JMOL and conditional new trial Judge grants JMOL and denies conditional new trial Judge denies JMOL but grants new trial Judge denies JMOL and denies new trial German Civil Procedure Handout. Langbein, “German Advantage in Civil Procedure” Questions on last page of that handout 3

4. Assignment for T 10/22 I • This is one of the few times when it might be advantageous to read/work ahead • 1995 Exam, Part II • I encourage you to write/type out answer • I will set up appointments to review • If you start writing out your answers before M 10/21, please be sure to revise after class • Settlement & ADR • Yeazell pp. 523-24,531-44, 548-50, 555-58 • You do not need to read these materials carefully • Handout (Polinsky) • If you are not quantitatively inclined, you will need to read this carefully. Polinsky is extremely clear, but it will take time • Questions on last page of that handout

5. Assignment for T 10/22 II • Settlement & ADR (continued) • A Civil Action through p. 448 • In what ways does A Civil Action confirm the validity of Polinsky’s economic model of settlement? • In what ways does A Civil Action contradict Polinsky’s economic model of settlement or suggest that the real world is more complex than that model? • Finish A Civil Action by Monday, October 28 • Pay special attention to fees • Given the settlement, how did they calculate how much Schlichtmann and the other lawyers received?

6. New Trial • After trial, either party may make a motion to the district court judge for new trial • If granted, trial starts all over again with new jury • Two reasons for new trial • Error in trial • Improper jury instructions, improper exclusion of evidence, improper argument by counsel etc. • Error must not be “harmless” • Verdict contrary to the great weight of the evidence • Easier standard than JMOL • Judge can evaluate credibility of witnesses • In theory, could have series of new trials • Note. New trial is also remedy ordered by appellate court

7. Conditional New Trial • Party can ask for new trial at same time as ask for JMOL • And nearly always a good idea to do so • Of course, party prefers JMOL • But new trial is good back up • If judge grants JMOL, might think that should not rule of new trial • But Rule 50(c) says that judge must “conditionally rule” on new trial, even if grants JMOL • That is, judge must say, if JMOL is reversed on apeal, then I would (or would not) grant new trial • Gives party a chance to challenge new trial on appeal at the same time it challenges JMOL • Saves time and money • Almost always appropriate to grant conditional new trial, if JMOL granted • Because standard to grant new trial (against great weight of the evidence) is lower than standard for JMOL (no reasonable jury)

8. Intro to Appeal I • 4 questions: who, when, what, how • Who can appeal • Side who lost below • Can only appeal to change judgment, i.e. reliefor lack thereof • More or less damages, different injunction • Cannot appeal just to change reasoning • When can appeal • Can only appeal final judgment • But when judgment is final, can appeal all issues • Examples of final judgments • Ordinary judgment, Grant of 12(b)(6), grant of SJ, grant of JMOL, • Examples of non-final judgments • Denial of 12(b)(6), denial of sanctions, discovery rulings, denial of SJ, grant of new trial, denial of JMOL, • Interlocutory appeals allowed if both District Court and Appellate Court agree. 28 USC 1292(b) • Some other exceptions

9. Intro do Appeals II • What can appeal? • Issues which are neither waived nor harmless • Waiver • Can only raise issue on appeal if raised issue properly in trial court • Cannot challenge legal theory, if did not challenge in answer or 12(b)(6) motion • Cannot challenge sufficiency of evidence, if did not make JMOL motion • Cannot challenge particular evidence if did not object at trial (or before) • Harmless Error • Court of appeals only overturns judgment if error is not harmless • Court has to decide whether outcome at trial is likely to have been different if error was not made • Did error make real difference at trial? • How does court of appeals review district court decisions? • Standards of review (next slides)

10. Appeal: Standards of Review I • De novo (non deferential) • Court of appeals examines issue afresh and reverses if it disagrees with the trial court, even if it thinks that issue was close call and trial court decision had strong arguments to support it • For legal issues • 12(b)(6), SJ, JMOL • Deferential standards • Court of appeals only reverses if it thinks that the trial court made a serious error • Clearly erroneous standard • For trial court determinations of fact, e.g. bench trial • Abuse of discretion standard • For trial court discretionary decisions • Whether to sanction, if sanction not mandatory • Amount/kind of sanctions • Most evidentiary issues • New trial

11. Last Class • Discovery sanctions • Most sanctions, except 26(g), are discretionary • Judges vary in their eagerness to grant sanctions • No sanctions awarded in Phillips or A Civil Action • But even if no sanctions awarded, judge may lose respect for side that engaged in abusive behavior • That may be worse than sanctions • Sometimes strategically advantageous to violate rules or agreements • But very dangerous • How to handle problematic opposing lawyer in deposition • Make record that can show judge later • Stop deposition to make telephonic motion to judge • Ask for appointment of discovery master

12. Summary Judgment Judge enters judgment before trial if no genuine dispute over material facts Judge does not evaluate credibility, but can decide admissibility Parties attach evidence to their memoranda in favor and opposing SJ In general, evidence needs to be admissible at trial Affidavits and deposition transcripts are exceptions, BUT they are only considered if equivalent live testimony at trial would be admissible This is meaning of 56(c)(2). “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” 12

13. Celotex I Celotex can prevail by pointing out that plaintiff has no admissible evidence showing that Catrett was exposed to Celotex asbestos Celotex need not present evidence proving that Catrett was not exposed Celotex asbestos More generally, party without the burden of proof (usually defendant) can prevail by pointing out that plaintiff lacks sufficient evidence to prevail Party without the burden of proof need not present evidence that proves it is correct Change from precedent. Adickes (1970) Part of trilogy of cases in 1986 that made SJ easier to get Pro-defendant Response to perceived caseload crises in federal courts Especially large number of cases involving asbestos Change in attitude toward plaintiffs from civil rights era Continues in Iqbal 13

14. Celotex II Note that Supreme Court did not decide that Celotex entitled to SJ Decided that Court of Appeals used wrong criteria for deciding SJ Case reversed and remanded to Court of Appeals Court of appeals decided SJ inappropriate and remanded to DC Difficult evidentiary issues regarding admissibility of plaintiff’s evidence Hearsay. Out of court statement offered to prove truth of matter asserted But lots of exceptions Deposition of Catrett may be admissible, because unavailable for trial But only if defendant had opportunity & incentive to cross-examine CtApp on remand seems to state that Celotex did not have incentive to cross-examine, because deposition was in worker’s comp case, where stakes much lower Letter from former employer May be admissible under business records exception CtApp on remand said admissible because defendant failed to object Letter from insurance company. Clearly hearsay 14

15. Summary Judgment Questions • In Celotex, what could the plaintiff’s lawyer have done during discovery to have had a better chance of defeating defendant’s motion for summary judgment? • In Celotex, what, if anything, could plaintiff’s lawyer do after the Supreme Court issued its opinion in order to win the case for plaintiff? • Yeazell pp. 588ff Qs 1c, 5 • Briefly summarize Bias. Be sure to discuss what evidence each side submitted to the court?  Why did the court grant summary judgment to the defendant? • In Bias, is it possible that the plaintiff would have prevailed at trial?  How?  If your answer is “yes,” why wasn’t he able to defeat the summary judgment motion? • If you were the plaintiff’s lawyer in Bias, what could you have done which might have helped you defeat summary judgment? • Yeazell p. 596 Q4

16. JMOL Basically SJ after trial over Powerful because allows judge to take case away from jury Or de facto to overturn jury verdict Like SJ, usually defendant’s motion Judge grants motion if no rational juror could decide in favor of plaintiff Like SJ, judge is not supposed to evaluate witness credibility Defendant must make motion before case submitted to jury Judge seldom grants (or even seriously considers) until jury returns verdict After jury returns verdict, defendant renews motion for JMOL Note that, like SJ, can get partial JMOL Note that, like SJ, plaintiff can move for JMOL But rare 16

17. JMOL Questions • Briefly summarize Penn • Your summary should include an answer to Yeazell, p. 652 Q 1a • Yeazell p. 652ff Q1b-c, • In Penn, what is the difference between a judge making a credibility determination that Bainbridge was not a credible witness (which the judge is not allowed to do) and a judge deciding that Bainbridge’s testimony was “suspicious, insubstantial, and insufficient…simply incredible” (p. 652) • In Penn, what arguments could plaintiff’s lawyer have made to have had a better chance of defeating judgment as a matter of law? • In Penn, if you think the Supreme Court erred in affirming the District Court’s granting of JMOL, do you think new trial would have been appropriate?