Agenda for 10th Class

1. Agenda for 10th Class • Admin • Handouts • Slides • SJ in a Civil Action • Name plates • Class next Wednesday noon-1:50 in Rm 3 • No class next Monday or Friday • No office hours next week • Discovery Sanctions • Review • A Civil Action • Summary Judgment • Celotex • Bias • Introduction to JMOL and New Trial

2. Next Class: JMOL & New Trial • Summary Judgment in A Civil Action • FRCP 50, 59 • Yeazell 636-37, 643-53 • Questions to think about / Writing Assignment for Group 1 • Would the outcome of the summary judgment motion in A Civil Action be different today? • Briefly summarize Penn • Your summary should include an answer to Yeazell, p. 647 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? • Optional. Glannon Ch. 24 • Plan ahead for last Civil Action assignment. See next slide.

3. Settlement & Fees in A Civil Action • For approximately Friday, 10/28 • Read to end of A Civil Action • Pay particular attention to: • Settlement negotiations • Division of money & fees • Consider the following questions / Writing Assignment for Group X • 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? • Given the settlement, how did they calculate how much Schlichtmann and the other lawyers received?

4. Review of Discovery Sanctions • 26(g). Very similar to Rule 11, except applies to written aspects of discovery • 30(c)-(d). Depositions • Lawyers can object in deposition, but can only instruct deponent not to answer “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to the court.” 30(c)(2) • 30(d)(2). Sanctions on person who “impedes, delays, or frustrates” deposition • 30(d)(3). May terminate or suspend deposition to make motion to judge to limit deposition • 37(a) Motion to compel • 37(b) Sanctions for failure to obey court order • 37(c) Sanction for failure to disclose, supplement, or admit • 37(d) Sanctions for failure to respond at allto discovery request

5. Questions on A Civil Action • Explain what happened at “the woodshed”? What rules had Schlichtmann violated which led to the woodshed? Why does Shlichtmann say he’s “sorry Judge Skinner wasn’t a party to the agreement“? (pp. 222 & 226) What sanction(s) did the judge impose? Why was the woodshed so important? • If you were Schlichtman, how would you have handled the settlement negotiation with Facher differently? (pp. 228-31). Why do you think Schlichtman acted as he did?

6. Summary Judgment I Burdens of proof Burden of production. Who wins if neither side produces any evidence If plaintiff has the burden of production, then defendant wins if plaintiff presents no evidence Burden of persuasion. Preponderance of evidence (civil), beyond reasonable doubt (criminal) If plaintiff has burden of persuasion and relevant standard is preponderance of evidence, the defendant wins if plaintiff and defendant each present evidence that is equally persuasive In general Burden of production and persuasion go together Plaintiff usually has both burden of production and persuasion Except defendant usually has burden of production and persuasion on defenses Burden of proof is very important for SJ Person without proof has much easier time winning SJ So SJ is usually defendant’s motion 6

7. Summary Judgment II Logical Structure of law suit Plaintiff must usually prove several things to win Negligence: Duty AND Negligence AND Proximate Cause Breach of Contract: Contract AND Breach Defendant can usually win by proving just one thing Disproving one element of plaintiff’s cause of action Negligence: Defendant wins if No Duty OR No negligence OR No Proximate Cause Beach of Contract: Defendant wins if No contract OR No breach Showing that plaintiff hasn’t proven one element Same logical structure Proving one affirmative defense Assumption of Risk, Condition precedent, etc. 7

8. Summary Judgment III Celotex Party who does not have burden of production can prevail by pointing out that other party has put forward no evidence This means that defendant need not prove its version of the facts, but rather can merely point out weakness of plaintiff’s case Makes sense, because defendant can prevail using same strategy at trial Summary judgment is not “a disfavored procedural shortcut.” Mechanics Each side submits memoranda discussing evidence and appendix of documents, deposition transcripts, affidavits, and other evidence Affidavits, declarations and deposition transcripts substitute for live testimony Affidavit (sworn statement); declaration (under penalty of perjury) To be useful, statements must be such that, if made live at trial, they would be admissible First hand knowledge, not hearsay, facts (not opinions, unless expert) 8

9. Summary Judgment IV Legal Standard “no genuine dispute as to any material fact and movant entitled to judgment as a matter of law.” Undisputed facts show that moving party prevail No reasonable juror could find for non-moving party Judge is not supposed to determine credibility Especially of non-moving party’s witnesses In theory, non-moving party could prevail by showing the moving party’s witnesses are not credible (just as could at trial) But that is rare. Hard to challenge credibility at SJ. Judges usually believe moving party’s witnesses, unless non-moving party can produce witness to contract them Summary judgment forces parties to do thorough discovery Must depose witnesses etc., so have information to oppose SJ 9

10. Summary Judgment V In general, summary judgment motion is made after discovery is complete, which is usually a few months before trial Party can move for summary judgment anytime between filing of complaint and trial Rule 12(d) says that pre-answer motion which includes matters outside the pleading should be treated as SJ motion Nevertheless, ordinarily, SJ motion filed before completion of discovery will not be considered. See Rule 56(d)(1) Early SJ is only appropriate when party has conclusive evidence on decisive issue Defendant in promissory note case has canceled check Deposition indicates that condition precedent not satisfied Note also that court can grant partial summary judgment SJ on one issue, even if not decisive Plaintiff could get partial SJ on duty and proximate cause, leaving negligence for trial 10

11. Summary Judgment Questions • Briefly summarize Celotex. Be sure to discuss what evidence each side submitted to the court.  • Yeazell pp. 586ff Qs 1, 2c • Does the Supreme Court’s ruling mean that defendant is entitled to summary judgment in this case? If your answer is “yes,” explain why. If your answer is “no,” explain why not. • 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? • 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?

12. JMOL / New Trial Sometimes things go wrong in trial Sometimes judge or lawyers make mistake If mistake big enough, then judge may order new trial Lawyer makes highly prejudicial argument to jury Lawyer reveals inadmissible and prejudicial evidence to jury Judge instructs jury incorrectly on major issue of law Rare Sometimes judge thinks jury makes mistake If judge thinks “no rational jury” could decide the way the jury decided Then judge enters judgment for side that she thinks should win JMOL (also known as j.n.o.v.) Judge not supposed to evaluate credibility of non-movant witnesses If judge thinks that evidence is overwhelmingly against jury verdict But that jury could still rationally have decided the way it did Judge can order new trial Judge can evaluate credibility 12