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WHERE WE ARE & WHAT WE’RE DOING

WHERE WE ARE & WHAT WE’RE DOING. Pleading Pre-trial Trial & Post-trial Appeal Scope of Review Harmless Error. APPEAL Scope of Review. 3 Steps Identify action appealed from Procedural posture Distinguish type of issue Law-Fact-Discretionary Identify scope of review

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WHERE WE ARE & WHAT WE’RE DOING

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  1. WHERE WE ARE & WHAT WE’RE DOING • Pleading • Pre-trial • Trial & Post-trial • Appeal • Scope of Review • Harmless Error

  2. APPEALScope of Review • 3 Steps • Identify action appealed from • Procedural posture • Distinguish type of issue • Law-Fact-Discretionary • Identify scope of review • Varies by types of decision

  3. APPEALScope of Review The Legal Standards Law = De novo No deference to trial court Fact = Clearly erroneous FR 52 Defer to trial court Mixed questions of law & fact = Separate into law & fact *Here lies swamp Discretionary = Abuse of discretion Defer to trial court

  4. APPEALScope of Review • Problem Set • Comments • Questions

  5. APPEALScope of Review • Law • Defining element & defenses • Many procedural questions • Many evidentiary questions

  6. APPEALScope of Review • Law • Defining element & defenses • Elements of negligence per se • Validity of release • Many procedural questoins • Req’ts for jurisdiction • Req’ts for sj • Many evidentiary questions • Req’ts for waiver of doctor-pt privilege

  7. APPEALScope of Review • Fact • “Historical Facts” re: Elements • What happened? • Tort • Was the autoclave unplugged? • Did EH get hepatitis from the tattoo? • Contract? • What did the parties say to each other? • What did the parties do to fulfill the contract?

  8. APPEALScope of Review • Fact • Facts Relevant to Procedural Issues • When was the summons handed to the defendant? • Did defendant file answers to the interrogatories?

  9. APPEALScope of Review: Fact • Anderson v. Bessemer City, p. 786 • FR 52(a) • Clearly erroneous review • Role of W credibility

  10. APPEALScope of Review • Exercise of judgment • Forum non conveniens • Weighing of factors • Rules 11, 26(g) & 37 • Whether to impose sanctions • Rule 59 • Whether to grant motion for new trial

  11. APPEALScope of Review • Exercise of judgment • Forum non conveniens • Weighing of factors • Rules 11, 26(g) & 37 • Whether to impose sanctions

  12. APPEALHarmless Error Rule • So you think you won? • Think again!

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