Agenda for 12th Class

1. Agenda for 12th Class • Admin • Name plates • Handouts • Slides • 1995 Exam (Part III) • Discuss Table of Motions • Appeals • German procedure • Introduction to Settlement & ADR

2. Assignment for Next Class I • 1995 exam question • Pay attention to genre -- appellate opinion (not memo to partner) • Can’t write “court will probably…,” but need to resolve each issue • But still discuss arguments for other outcome, where plausible • Need to explain at end whether you affirm, reverse, remand • Affirm. Lower court judgment stands • Reverse. Appellate court changes lower court judgment • Remand. Appellate court sends case for resolution back to lower court with instructions on what to do differently • Reverse and remand. • Pay particular attention to the appellate review issues • For each issue, consider • Who can appeal? • Was issue waived? • Standard of review • If error, was error harmless? • Of course, also pay attention to other issues -- Discovery, amendment…

3. Assignment for Next Class II • Writing Assignments from 1995 exam question • WG1 & WG2. Jan 1994 • WG3. April 1994 • WG4. January 1995 • WG5. Feb 1995 • WG6. March 1995 • WG7. April 1995 • For each of these issues, remember to discuss (where relevant) appellate review issues • (WG1-7). What is the ultimate decision?: • Affirm? • Reverse? • If remand, what issues does trial court need to resolve? • If new trial, which defendants should be parties to new trial and which issues and causes of action are to be litigated?

4. Appeal: Who • 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 • Often both sides can appeal --- Cross appeals • If won, can defend judgment on appeal with reasons rejected by trial court • Need not cross appeal • “Right for any reason” doctrine • Judge denies 12(b)(6) motion based on invalid legal theory, but grants defendant’s SJ based on uncontradicted evidence. Plaintiff appeals. Defendant can argue that appellate court should affirm based invalid legal theory argument in 12(b)(6) motion. • Plaintiff sues on contract and tort theory. Both give same damages. Court grants SJ to defendant on tort theory, but gives judgment to plaintiff on contract theory. Defendant appeals. Plaintiff can argue that appellate court should affirm based on tort theory on appeal. • If in doubt, cross appeal.

5. Appeal: Finality • Can only appeal final judgment • Rule is about when, not what • But when judgment is final, can appeal all issues resolved in case • Examples of final judgments • Grant of 12(b)(6), grant of SJ, grant of JMOL, judgment in accordance with verdict • Assuming these are complete rather than partial • 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 • Partial Summary Judgment, 12b6 on some but not all claims • Sanctions are NOT final judgments • Rule 11 sanctions, discovery sanctions • Must wait until end of case • Interlocutory appeals allowed if both District Court and Appellate Court agree. 28 USC 1292(b) • Some other exceptions

6. Appeal: Waiver & Harmless Error • 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? • These 2 rules are very important • Litigators need to consider when litigating and considering appeal • Clerks to appellate court judges will use all the time

7. 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 • Purely legal issues in discovery • 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 • Bench trial • Purely factual aspects of discovery

8. Appeal: Standards of Review II • Deferential standards (continued) • Abuse of discretion standard • For trial court discretionary decisions • Whether to sanction, if sanction not mandatory • Amount/kind of sanctions • Some evidentiary issues • New trial

9. Appeal Questions I 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 Van Zee 9

10. Appeal Questions II 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, denies new trial, and enters judgment for the plaintiff 10

11. Langbein, “German Advantage…” • 1) Are you convinced that German civil procedure is better than American civil procedure? Why or why not? • 2) What aspects, if any, of German civil procedure do you think are superior to American civil procedure? Could we adopt them without changing other aspects of our procedure? • 3) What aspects of American procedure do you think are superior to German civil procedure? Could they adopt them without changing other aspects of their procedure? • 4) Do you think that US courts would need a larger or smaller number of judges if we were to adopt German civil procedure ? • 5) Do you think a bad judge has a bigger negative effect in Germany or the U.S.? • 6) Europeans are generally willing to pay higher taxes to fund higher quality public services. Can that help explain why Germany and the U.S. have different systems of civil procedure?

12. Langbein, “German Advantage…” • Control of sequence • Discovery • Witnesses • Experts • Appellate review • Judicial career