Agenda for 9th Class

1. Agenda for 9th Class • Admin • Handouts • Name plates • Intro to JMOL • Review of Experts & Protective Orders • Sanctions • Phillips • A Civil Action • Summary Judgment • Celotex

2. Assignment for Next Class I • Summary Judgment (continued) • 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 • Optional. GlannonCh23 • A Civil Action • Read through p. 448 by October 22 • Pay special attention to settlement negotiations • Finish by October 28 • Pay special attention to fees

3. Assignment for Next Class II • JMOL • FRCP 50 • Yeazell 643-58 • 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? • Optional. Glannon Ch 24

4. Intro to JMOL I JMOL = Judgment as a Matter of Law Basically SJ after trial over 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 4

5. Intro to JMOL II Defendant usually moves for motion at trial, after plaintiff has finished presenting its evidence or after presentation of all evidence This used to be called “Directed Verdict” Judge almost always defers decision on motion until after jury delivers verdict Otherwise, if reversed on appeal, will need to completely redo trial Also, if jury decides for defendant, then judge doesn’t need to rule at all For constitutional reasons, defendant must make motion before jury decides 7th Amendment forbids overturning (“reexamining”) jury verdict But permissible not to send case in first place to jury If defendant makes motion before verdict and judge defers decision until after verdict comes in, treated as if judge had never sent case to jury. Defendant renews motion after jury verdict comes in Used to be called jnov (judgment non obstante veredicto / judgment not withstanding the verdict) 5

6. Last Class I • Experts • Non-testifying experts hired in anticipation of litigation or in order to help prepare for trial are generally shielded from discovery • 26(b)(4)(D) “Ordinarily, 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 expected to be called as a witness at trial.” • Exception for “exceptional circumstances” • Where other lawyer can’t now get equivalent information AND could not reasonably have been expected to have gathered information earlier. Chiquita, Thompson • Some judges might see expert shopping as demonstrating exceptional circumstances • Doesn’t seem to protect existence or identity of non-testifying experts • Most judges would protect • But some might require sharing of information, if evidence that plaintiff has engaged in expert shopping

7. Last Class II • Experts (continued) • Wouldn’t seem to protect discovery of experts by request for documents or other discovery methods • But most judges would protect • Perhaps 26(b)(4) doesn’t shield non-testifying experts from document discovery, b/c such documents would be protected by 26(b)(3) • Protective orders • Discovery can be very expensive and intrusive • Party that thinks that discovery is excessively expensive or intrusive can make a motion for a protective order under 26(c) • Even if discovery is relevant, not privileged, and not protected by work product, expert rules, or other provisions of FRCP • Stalnaker • Protective order regarding outrageous questions re private sex lives • Don’t get so caught up in “thinking like a lawyer” that you block your emotional responses to cases

8. 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 supplement • 37(d) Sanctions for failure to respond at allto discovery request

9. Questions on Phillips • 1) In Phillips v Manufacturers Hanover Trust, what rule, if any, did defendant’s counsel violate? Be sure to consider FRCP 11, 26(g), 30(c),30(d), 37(a)(4), 37(b) and 37(d) and explain why each rule was or was not violated. Note that the Rules have been amended several times since 1994, so the reasoning in the opinion may no longer be valid. • 2) For each rule that you think the defendant’s lawyer violated, what is the sanction? Are sanctions mandatory or discretionary? • 3) Did the magistrate judge make the right decision in Phillips v Manufacturers Hanover Trust? If you were a law clerk to Judge Francis what would you have advised him to do? • 4) What, if anything, should the plaintiff’s lawyer in Phillips v Manufacturers Hanover Trust have done differently? • 5) If the plaintiff’s lawyer asked the district court judge to review the magistrate judge’s decision, is the district court judge likely to affirm the magistrate judge’s decision

10. Questions on A Civil Action • Explain how Shlichtmann got information to build his case. What discovery devices did he use? What methods other than discovery did Schlichtman use to get information? • Explain what happened on pp. 162-65. Why did Cheeseman and Frederico object when Schlichtmann asked Love whether he was concerned when he found out that the wells were contaminated? Why didn’t they instruct Love not to answer? Why did Schlictmann ask these questions? • 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?

11. Summary Judgment Legal Standard “no genuine dispute as to any material fact and movant entitled to judgment as a matter of law.” “movant” = person making SJ motion (usually defendant) Undisputed facts show that moving party prevails No reasonable juror could find for non-moving party Non-moving party is party opposing motion (usually plaintiff) Judge is not supposed to determine credibility No live witnesses, but affidavits and deposition transcripts 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 11

12. Summary Judgment Questions • Briefly summarize Celotex. Be sure to discuss what evidence each side submitted to the court?  Why was plaintiff’s evidence not clearly sufficient to defeat defendant’s  summary judgment motion?  Why was defendant’s evidence possibly sufficient for its summary judgment to be granted? • 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