CIVIL PROCEDURE | SPRING 2013

Professor Shaun Martin Julie Nguyen

PLEADINGS
Generally governed by FRCP 8 A. Complaint the plaintiffs pleadings Case is commenced by filing of pleading Benefits of details in the complaint: o Get rid of frivolous complaints early; let D know what claim is about; narrow the issue FRCP 8(a): 3 Requirements for Complaint 1. 8(a)(1): (Short & plain) statement of grounds for subject-matter jurisdiction o Makes sense because were in federal court which has limited jurisdicti on 2. 8(a)(2): Short & plain statement of the claim (showing that pleader is entitled to relief) 3. 8(a)(3): Demand for relief o Damages, injunction? o FRCP 54(c): If D defaults, P is limited to what P asks for. Bail v. Cunningham Brothers, Inc. if case goes to trial, P recovers what P is entitled to as long as D doesnt suffer prejudice for it (ie: being tried in front of federal jury). An amendment to the ad damnum clause should be allowed unless it changes the required quantum of proving a material fact or there is a good reason shown why it should not be amended. Traditionally, the federal system focuses on notice pleading (hence, short and plain statement). Classically, we just want a complaint to start a lawsuit and give D a notice of the lawsuit. We get more information on the lawsuit through discovery, etc. The complaint provides minimal amount of detail. State courts, on the other hand, are often more picky than federal courts. Gillispie v. Goodyear Service Stores complaint was vague; not sure what claim is about; a lot of legal conclusions but not enough facts. If there were enough facts, the court could screen out unmeritorious points. Not just notice pleading, need facts pleading. It should be reasonably straightforward. Dioguardi v. Durning Ps complaint was hard to understand, because P was a pro -per plaintiff whose English was not his native language. Court allowed complaint to go forward (more laxed for pro se claimants. However, laxness would not continue through the litigation). Complaint can be tiny. For instance, 3 sentences: 1) There is jurisdiction. 2) On a certain date at a certain place, the defendant did what to who (cause of action). 3) Damages sought (relief). Heightened Pleading Standards Bell Atlantic Corp. v. Twombli (anti-trust action) & Ashcroft v. Iqbal (September 11 attack) Three rules emerged from these cases: 1. Court ignores conclusions of law. 2. Plaintiff must plead facts supporting a plausible claim. 3. Defining Plausibility: Court will use its experience and common sense to decide if the claim is plausible. Very subjective. The more the court doesnt like your tort (requires more detail), the more plausibility is required. Ie: prisoners, big class action lawyers The more common the suit, the less plausibility is required. Ie: dog bites Private Securities Litigation Reform Act Requires that the complaint specify each statement alleged to have been misleading and give the reason or reasons why each is misleading. If an allegation is made on information and belief, all facts on which the belief is formed must be stated with particularity. Facts giving rise to a strong inference that the defendant acted with scienter must be stated with particularity.
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Some exceptions that require even more detail: FRCP 9(b): In alleging fraud or mistake, party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a persons mind may be alleged generally. o Policy: Fraud is a valuable cause of action, because it can damage Ds reputation, lead to settlement, etc. FRCP 9(g): If an item of special damages is claimed, it must specifically stated. o General damages are damages that occur as a usual consequence. Ie: pain and suffering. Special damages are damages that would not ordinarily flow from an event. Ie: loss of earnings, medical expenses. o When in doubt, plea it. Ziervogel v. Royal Packing Co. if you leave it out of your pleading, you are deemed to have waived them at trial, so you cannot recover for those damages. B. Defendants Response FRCP 12: o 12(a): After D is served with process, D must respond in 21 days or else D risks default. o Respond either by motion or by answer i. Motion: request for a court order; not a pleading 12(b) motion: lists 7 defenses; 12b defenses can be raised by motion or answer i. 12(b)(1): Subject matter jurisdiction dismiss because no SMJ ii. 12(b)(2): Personal jurisdiction dismiss because no PJ (waivable defense) iii. 12(b)(3): Venue plaintiff has laid venue in an improper place (waivable defense) iv. 12(b)(4): Insufficient process problem with either of summons and complaints documents (waivable defense) v. 12(b)(5): Insufficient service of process process documents were ok but were not served appropriately (waivable defense) vi. 12(b)(6): failure to state a claim (complaint itself reveals absolute defense; doesnt specify COA; no such tort) o ie: P misses an element of the tort, etc; big win, because case gets dismissed with prejudice (on the merits). o Freebie (in old days, it was a gamble). But now, if you lose, just means you have to answer complaint. o Not easy to win. Limitations: 1) assume everything in complaint is true. 2) cannot add undisputed facts. o Caveat: Court will only grant dismissal if plaintiff cannot fix it. Court can dismiss with a leave to amend. o Only time court dismisses with prejudice without leave to amend is if amendment is futile (ie: outside SOL; not an actual tort, etc) vii. 12(b)(7): failure to join an indispensible party 12(c): Motion for Judgment on the Pleadings After the pleadings are closed but early enough not to delay trial a party may move for judgment on the pleadings. 12(e) motion: motion for more definite statements (rare); this is where the complaint is intelligible 12(f) motion: motion to strike (where a claim is not supportable by law) Impertinent, redundant, etc matter 12(g) & 12(h): Important parts: o If party wants to raise FRCP 12(b)(2), 12(b)(3), 12(b)(4), or 12(b)(5) defenses, party must put it in their first FRCP 12 response. o 12(b)(6) and 12(b)(7) defenses can be raised for the first time anytime through trial. Unlike 12b2-5, these defenses do not need to be placed in first FRCP 12 response. o 12(b)(1) can be raised anytime in the case. This defense is never waived.

Hypo: Plaintiff sues defendant. Defendant files a 12(b)(5) motion for insufficient service of process. The court denies the motion. So the defendant now has to file an answer, and in her answer, she asserts that there is no personal jurisdiction. o Cannot do this, because defendant has already waived PJ defense. If you want to raise PJ defense, it must have been in the first motion. ii. Answer respondents pleading Very important for defendant to take care of two things in an answer: 1) Must respond to the complaint by.. o Admit to claims asserted o Deny to claims asserted Failure to deny is an admission (except in damages)
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(FRCP 8(b)(5)) Lack sufficient information do not know. You cannot say you dont know if it is a matter you control. ie: In a complaint about a contract, you cannot say you dont know if youre too lazy to look up the files in your records. 2) FRCP 8(c)(1): Raise affirmative defenses (waivable defense) o Affirmative defenses must raised in the answer or else it is waived. o Ingraham v. United States TX capped noneconomic damages, and US did not add that defense to their answer. Therefore, the court considered it waived. US could not raise on appeal. o Taylor v. United States Use statutes in federal question and state practice in diversity. o When in doubt, plead it (use as placeholder). o Difference between Affirmative Defense and Denial: An affirmative defense injects a new fact that the plaintiff didnt talk about (if defendant is right, she wins). It does not flow logically from the complaint. o FRCP 8(c): includes bankruptcy, lack of venue; lack of personal jurisdiction; accord and satisfaction; statute of limitations; statute of fraud; res judicata A denial is reactive to what the plaintiff says (not raising anything new). o General Denial I hereby deny the entirety of the complaint. Allowed in state court, but can only do in fed. Ct if 100% of everything P asserts is untrue, including jurisdiction. o Specific Denial Go through Ps complaint paragraph by paragraph, word by word, and admit or deny ea ch. If you miss something, you are deemed to admit it. Strategy: Be stingy with admitting, because its harder to amend your answers. Zielinski v. Philadelphia Piers, Inc. P sued wrong D. D generally denied. FRCP 8(b): allegations in a complaint that are not specifically denied are deemed admitted. D was held liable. Biggs v. Public Service Coordinated Transport D generally denied plaintiffs jurisdictional allegations. o Negative Pregnant Denials owing a penny less than that mount plaintiff alleges; improper C. Amendments pleadings are over; case is now at issue. FRCP 15(a): Amendments Before Trial. Either side can amend pleadings: o You learn something new in discovery, you add it to your complaint (amend). o An error/defect was discovered in the complaint, and you need to fix it. o Sometimes new things happen post-filing (stuff that you didnt sue for because it hadnt happen yet). (supplemental pleadings) Mandatory Right to Amend: right to amend your pleading within 21 days of serving the pleading. Discretionary Right to Amend: o Right to amend when you get written consent from the other party. o Right to amend with leave of court (such leave shall be freely given). The only time court cannot leave to amend is when it causes the other side prejudice. Time to Respond: 14 days. Beeck v. Aquaslide N Dive Corp. D initially admitted to being manufacturer of waterslide which claused injury to plaintiff. D amended after SOL ran out. Court allowed because it wasnt made on bad faith. FRCP 15(b): Amendments During and After Trial o Moore v. Moore Complaint was about child custody. Later, Mrs. Moore asked for child support, alimony, etc. The court allowed it even though Mr. Moore argued he suffered prejudice (wouldnt have emphasized how much money he had to win child custody if he knew the case would be about child support too). FRCP 15(c): Relation Back of Amendments. o 15(c)(1): Amended complaint relate back to original complaint, so that it is deemed to be filed the same date as original complaint for SOL purposes. Allowed when: a) Law that applies SOL allows relation back b) Amendment asserts a claim or defense that relates back to the same transaction/occurrence in original pleading c) Mistakes regarding party names Must know about mistake within relevant FRCP 4(m) period (120 days). Worthington v. Wilson P had his hand twisted by some officers. He filed suit on last day of SOL, and asserted claim against unknown officers. Relation back not allowed because there was no mistake, P simply didnt know the names. D. Truth Seeking Provisions How to get people to tell the truth? o Perjury Prosecutions (rare) largely relates to witnesses. However, they lie all the time, not much we can do. o We can tighten up on parties and lawyers, however. FRCP 23.1: Must verify complaint (swear under penalty of perjury) in derivative actions
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o o o

Derivative Action: when a stockholder sues on behalf of all the shareholders Policy: Worried about too many of these lawsuits. Surowitz v. Hilton Hotels Corp. Derivative action where during deposition, P couldnt understand allegations in the complaint even though she signed the complaint under penalty of perjury. Complaint was dismissed under FRCP 23.1, but the court reversed it because it was not made in bad faith. P merely did not understand English so she relied on her Harvard grad son-in-law. FRCP 11(a): Signature. Every paper in fed. Ct must be signed by lawyer. FRCP 11(b): Representations to the Court. When a lawyer signs the paper, we assume he has read the whole thing (and conducted investigation). o 11(b)(1): Not filing this paper for an improper purpose (being a jerk) o 11(b)(2): The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. o 11(b)(3): The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; o 11(b)(3): The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. Pre-1983 Rule 11 Sanctions: Lawyers were sanctioned for subjective bad faith such as when they some document was frivolous or not warranted by existing law. However, virtually no one was sanctioned because it was hard to prove and courts were reluctant to do it. Post-1983 Rule 11 Sanctions: o Standard changed from subjective to objective would a reasonable lawyer have know the document was not warranted by existing law? Additionally, require inquiry of existing law. o Discretionary mandatory sanctions. o Sanctioned for however much the other party spent to respond to your frivolous complaint Policy: Discourages attorneys from filing something frivolous. o Problems: Overly deterred attorneys from zealously representing their clients; incentivized others to ask for sanctioned money Amendments to FRCP 11: Sanctions are back to discretionary. Harder to ask for sanctions; adopted 2 procedural requirements: 1) Rule 11 Motion separate stand alone motion which will require more work, money, time for hearing 2) Safe Harbor Rule file a sanction motion and the party who may be sanctioned can withdraw their frivolous motion; makes lawyers more before they file a motion. 28 U.S.C. 1927: Sanction attorneys who vivaciously multiply the proceedings o Pro: Only attorneys are sanctioned (and they have money). o Con: Requires subjective bad faith which is hard to prove that attorney knew what he wa s doing was frivolous. Inherent Power Sanction: Courts hold an inherent power to sanction parties, litigants, and attorneys in front of them. o Fills in gaps of Rule 11 limitations o Only applies to things in writing frivolous papers o Doesnt apply to discovery stuff o Show up in court naked sanction.

JOINDER
Joinder rules determine the scope of the litigation - how many parties and how many claims. Note: This is a good topic for the professor to test subject-matter jurisdiction. In federal system, you can join totally unrelated claims against the same defendant. Problems: o jury may get confused o trial may take a long time o potential prejudice problems (see how bad this guy is?) o delay and efficiency Caveat: Fed court allows you to join these claims initially, but under FRCP 21 and 42(a), courts can sever claims under their discretion.
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A. Claim Joinder by the Plaintiff (Rule 18) o FRCP 18(a): plaintiff can assert any claims against the defendant o Claims do not need to be related; claims do not all have to be asserted plaintiff can choose. o Assess SMJ for each claim diversity or federal question? B. Claim Joinder by the Defendant (Rule 13) Defendant is asserting a claim (suing somebody). Two types: 1) Counterclaim a claim against an opposing party (against someone who has sued you); best example is by defendant back against the plaintiff. o Counterclaim is asserted in the answer; not a separate pleading. o Governed by FRCP 13(a) & FRCP 13(b) o 2 types of counter-claims: a. Compulsory counterclaim: FRCP 13(a)(1) - claim that arises from the same transaction or occurrence as the plaintiffs claim. Compulsory because it must be asserted in this lawsuit (only compulsory claim) or that claim is barred by res judicata. If you dont use it, you lose it. Assess SMJ. Ex: A & B collide in a car accident. First lawsuit: A sues B. Somebody wins. Second lawsuit: B sues A. Case is dismissed because this was a compulsory counterclaim and had to be raised in the first lawsuit. United States v. Heyward-Robins Co. transaction depends on logical relationship. Counterclaims were compulsory because navy subcontracts at issue were entered into by the same parties for the same type of work and carried on during substantially the same period. b. Permissive counterclaim: FRCP 13(b) claim that does not arise from the same transaction or occurrence as the plaintiffs claim. May assert it here, but party does not have to. It may be filed in a separate lawsuit. Why want it in a separate lawsuit? Strategy: choose jurisdiction, surprise them with lawsuit? Assess SMJ. Hypo: A & B crash. Each person is injured. A (citizen of NY) sues B (citizen of FL). It is a $100,000 claim under state law and therefore does not invoke federal question. It does invoke diversity however. B asserts a compulsory counterclaim back against A. That claim is for $90,000. o This is a compulsory counter claim because it arises from the same transaction or occurrence against an opposing party. o Luckily, this compulsory counter claim invokes diversity so it has SMJ. If Bs claim was $40,000 instead. o This is a compulsory counterclaim since it arises from the same transaction or occurrence. o This claim does not invoke diversity or federal question, and therefore does not have SMJ. o This compulsory counter claim could never go to federal court unless we can get supplemental jurisdiction over it. Supplemental Jurisdiction o Does 1367(a) grant SJ over this claim? Yes, if it meets the CNOF (TO always meets Gibbs test) Therefore compulsory counterclaim will always invoke supplemental jurisdiction o Does 1367(b) take SJ away? 1367b applies in diversity cases and this is a diversity case (the main lawsuit). However, it only takes away claims by plaintiff. This is not a claim asserted by plaintiff, so it does not take it away.

Supplemental jurisdiction is irrelevant until you show that there is no diversity or federal question. 2) Cross-claim - claim against a co-party o FRCP 13(g): Claim must arise from the same transaction or occurrence as the underlying case (otherwise, cannot assert). o These claims are never compulsory. You can assert if same T/O and you want to. Policy: Want defendants to present a unified front for now and not ratting each other out. o LASA v. Alexander cross claims were about different causes of action libel, etc, but essentially all about whether the marble was good or not. Considered same T/O. Aim is efficiency. Hypo: There is a 3-way car wreck between A,B, &C. A (AL), the plaintiff, sues B (NY) and C (NY). B & C are codefendants. Every claim exceeds $75k. There is no federal question. It invokes diversity jurisdiction. If we represent C in the lawsuit, what can C do? o C must file a compulsory counter-claim against A. Because there is diversity, there is SMJ over the claim.
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C may file a cross-claim against B. However, there is no diversity or federal question. Therefore, we look to see if there is supplemental jurisdiction. First, 1367(a) grants SJ over the claim because it arises from the same CNOF. (cross-claims always meets 1367a). Second, 1367(b) applies in diversity case, but 1367(b) only takes away claims by plaintiffs. Although this is a diversity case, it is not a claim by plaintiff, so this claim has supplemental jurisdiction.

Rule 17 Who can be sued? Real Party in Interest o Ellis Canning Co. v. International Harvestor Co. Ps insurance already compensated P for Ps tractor damage, but P continued to sue D for damages. Court found the insurance company the real party in interest because theyre the only party who cares about getting recovery. Policy: Designed so that the party who has stake in the litigation can care about and control the lawsuit. FRCP 17(a): Action must be prosecuted by real party in interest. However, lawsuit cannot be dismissed for this unless you allow them to get notice and ratify the lawsuit. FRCP 17(b): Capacity Rule capacity to sue is substantive so it offends eerie doctrine. Therefore, we borrow state law in this area. FRCP 17(c): Minors guardians and parents can represent the minors. C. Rule 20 looks to see who may be joined A tool for plaintiff. When the plaintiff is structuring the case, the plaintiff may decide that it wants multiple parties. Ex: There is a cab wreck with multiple plaintiffs. Can we have 3 co-plaintiffs together sue the cab driver? FRCP 20(a)(1): May we join together as co-plaintiffs? Yes, if these two things are true: 1) claims arise from the same transaction or occurrence 2) claims raise one common question o ie: was the cab driver negligent? Here, yes. Access subject-matter jurisdiction. D. Required Joinder of Parties (Rule 19) looks to see who MUST be joined or at least SHOULD be joined Sometimes, the court will force the joinder of the absentee (non-party) because he is necessary. 3 Steps: 1) FRCP 19(a)(1): Is the absentee necessary (required)? Yes, if we meet any of these 3 tests (policy reasons): o 19(a)(1)(a): Without the absentee, the court cannot accord complete relief (or make things whole between these parties before the court). Efficiency reason; want to avoid multiple lawsuits. o 19(a)(1)(b)(1): Most important! The absentees interest may be harmed if that party is not joined. o 19(a)(1)(b)(2): The absentees interest may subject the defendant to multiple or inconsistent obligati ons. Joint tortfeasors are never necessary. Hypo: You own 1000 shares of stock in XYZ corporation. Another person comes in and says that we own the stock together. I sue the corporation ordering the corp to cancel your stock and reissue the stocks in our joint names. You are an absentee. Are you necessary? o 19(a)(1)(a) Yes, because without you, the court cannot afford complete relief. Such as if I win this case, you will later sue me. o 19(a)(1)(b)(1) Yes, you can be hurt by this litigation. If I win this case, your stock is cancelled. o 19(a)(1)(b)(2) Yes, if youre not brought in, the D corporation will get hit with inconsistent obligations. If yes to question 1, proceed to question 2. If no to question 1, let lawsuit go forward. 2) Is joinder the absentee feasible? (Basically, can we get her?) Yes, if: o We have personal jurisdiction over that party. Strategy: Use FRCP 4(e) Bulge For 19 parties, get PJ by serving within 100 miles of judicial court. o and bringing that party in does not screw up diversity jurisdiction (so that we have SMJ over her too). 3) The absentee is necessary, but joinder is not feasible. o FRCP 19(b) The court will either: i. Proceed without the absentee If so, would it prejudiced those parties? If so, can the court shape the relief?
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ii. o

Or dismiss the entire case How to make this decision? FRCP 19(b) gives a list of factors. The 4th factor is most important. If the court dismisses, will the plaintiff have an adequate remedy? This means we rarely dismiss unless there is another court for plaintiff to bring suit. FRCP 12(b)(7): If the court decides to dismiss the case, we call the absentee indispensible (a label we slap on you at the end of the process).

E. Impleader (Rule 14) - D brings in TPD Governed by FRCP 14. FRCP 14(a): Defending party brings in somebody new called the third party defendant (TPD). Defending party brings in a TPD because that party may be liable to D for Ps claim against D. In other words, this is an indemnity (in whole) or contribution (in part). ie: insurance company or joint tortfeasors. Distinguish between impleader and cross-claim: o Impleader is a claim against a new party while a cross claim is a claim against an existing co-party (such as a defendant suing a co-defendant because plaintiff sued multiple parties). Possible resulting claims: o 14(a): Ds impleader claim against TPD o 14(a)(3): Ps claim against TPD - ok if it is the same transaction. Case: Owen equipment v. Kroger o 14(a)(2)(d): TPDs claim against plaintiff ok if same transaction. Assess SMJ for each claim. Too, Inc. v. Kohls Department Stores, Inc. federal courts can sever claims in the interests of justice. Tip: If our joinder rule begins with the letter C (counter claim or cross-claim), they are claims between existing parties. If the joinder rule begins with I (impleader or intervention), someone new is joined. F. Interpleader (Rule 22) Allows P to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. Interpleader action originates when the plaintiff holds property on behalf of another, but does not know to whom the property should be transferred. (often used in disputes arising under insurance contracts). Used when a stakeholder has res with multiple claimants. (e.g. Insurance Claim) o Purpose is to prevent the stakeholder from paying twice. o Claims are not competing if they add up to less than the total amount deposited. Involves two suits: o First suit ends with decree allowing the stakeholder to withdraw from the case and enjoining the claimants from taking any further proceedings against the stakeholder. o Second suit requires claimants to fight over the property. Generally a tool of the P but can be employed by a D in a cross-claim, compulsory counterclaim or permissive counter-claim. o Caveat: Should not be abused by a party to avoid larger liability (State Farm Fire & Cas. Co. v. Tashire).

Common Law Interpleader The same property must be claimed by all Ds o All claims must derive from the same source o P must be totally disinterested stakeholder (Hancock Oil Co. v. Independent Distributing Co.) o P must have no independent basis of liability to any D o Court must have jurisdiction over the subject matter and all defendants Designed to make sure you have a pure interpleader action deposit the res (give it to the court) and run (let the claimants fight it out) Impleader is a good idea, so we want to relax the standards. Personal Jurisdiction - In rem jurisdiction (all about a res) Interpleaders are all about a res as well. Good thing about interpleader almost always in rem actions, and classically, theres automatic PJ wherever the res is located. Shafer required Minimum Contacts but we usually think there is PJ in the forum wherever the res is located New York Life Insurance Co. v. Dunlevy -

Most interpleader actions are in federal court because the state doesnt allow enjoining of other suits. States also maintain the normal jurisdiction, venue and service requirements. Federal Interpleader o Requirements for Statutory and Rule Interpleader Same property Claimants can have interests that are from a common origin, so long as they are adverse to each other (i.e. mutually exclusive) No longer requires a completely disinterested/pure stakeholder, so long as it is in the nature of interpleader (Pan American Fire & Cas. Co. v. Revere) and damages are less than propertys value No independent liability from P to any D o Limitations: Cannot be used to litigate a complex tort situation with a multitude of claims ( State Farm Fire & Cas. Co. v. Tashire) Must apply the conflict-of-laws rules of the state in which it sits (Griffin v. McCoach) o Can get PJ through nation-wide service of process (tagging anywhere in the states, making PJ and venue proper). States do not have this national contacts theory. Two ways to file interpleader in federal court: 1) 1335 Statutory Interpleader Congress enacted statutory interpleader because most cases could not meet the rule requirements. 2) FRCP 22 Interpleader Must choose one, cannot use both.

Differences between Statutory and Rule Interpleader

Issue

28 U.S.C. 1335, 1397, 2361

Statutory

FRCP 22 Interpleader

SMJ: Diversity SMJ: Amount PJ/SOP

Venue

Minimal diversity = only claimants need to be diverse, not P, unless P is a claimant. $500 Nationwide SOP can serve and sue anywhere in the United States, MC = entire United States Residence of one or more claimants (Can do a 1441 transfer, but it is difficult) Statutory authority (federal impleader act) Can enjoin other state actions Mandatory deposit of property or bond Multiple liability or multiple vexation

Complete diversity with stakeholder(s) on one side and claimants on the other $75,000+ Need personal jurisdiction and service under

FRCP 4

over all claimants

Standard venue provisions

Injunctions Enjoin State Action Property Liability/Lawsuit

Only basis is 28 U.S.C. 2283 where necessary in aid ofjurisdiction Murky- probably not allowed (State Farm

Fire & Cas. Co.v. Tashire)

Optional deposit of property or bond Multiple liability only

G. Intervention Absentee (non-party) is bringing herself into the lawsuit Governed by FRCP 24 Designed to avoid collusive lawsuits. Types of Intervention: o Intervention of Right: FRCP 24(a)(2): The absentee has a right to come into the case if that partys interest may be harmed if that party is not joined (even when its inconvenient). Granted by federal statute (ie: U.S. can intervene as a party in a civil rights case) Act of congress alleged to be unconstitutional Requirements: 1) You have to claim an interest in the subject matter of the lawsuit. Care in concrete way about the outcome. Ideological opposition not enough. ( Smuck v. Hobson) 2) The resolution of the lawsuit without you may impair or impede you. 3) Your interest cannot be adequately represented by the existing parties. Schoolboards interest is in net childrens wealthfare while parents are interest in their own childrens welfare. Different goals so prong is met ( Smuck v. Hobson).
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Permissive Intervention: FRCP 24(b)(2): The absentees claim or defense and the pending case have at least one common question. The court has discretion to allow that party to join or not. Ask the court if you can intervene. File FRCP 24(b) Motion. Remember the intervener is coming in to either assert a claim or defense. You only assess SMJ over the claims (the claim intervener asserts or the claims intervener is defending). o

CLASS ACTION
Rep sues on behalf of a class. If you are part of a class action, you cannot sue in a separate lawsuit for the same claim against the same defendant. Background on Class Action Opt in used to require affirmative action. Now it is automatic while opting out required an affirmative action. 20th century explosion. 90s Congress didnt like investors winning so passed a bunch of laws to make class -action lawsuits harder. Harder to file class actions in federal system. Attorneys responded by filing more in state courts. Congress responded by making it easier to remove the suit to federal court. Pro: Class actions can deter bad corporate behavior. With individuals, damages may be small and not worthy of bringing suit. With class actions, the small damages may be large collectively. Companies would be inclined to settle. Con: Over-deters companies/businesses so they become less innovative; plaintiffs cannot control attorney since the attorneys gets to decide when to settle. Governed by FRCP 23 a) Pre-requisites for Certification (must meet all): o Sufficiently Definable Class must be defined in complaint; reasonably certain who will be in the class or out of the class (usually not hard to meet this prong) o Named Plaintiff (representative) only need one; now allowed to pay him; felony if lawyers bribe them. Strategy: Say youll ask the court to give incentive awards to compensate them for their service deposition, etc. Strategy: Defendant can buy off named plaintiff. 1. 23(a)(1): Numerosity Too many parties to be workable as co-plaintiffs (impractical). 2. 23(a)(2): Commonality there is a question of law or fact common to the whole class. General Telephone Co. v. Falcon named plaintiff advanced his own specific claim of intentional discrimination and did not show a pattern in defendants promotion practices (that it was moti vated by discrimination). He did not meet the commonality prong, so class could not be certified. 3. 23(a)(3): Typicality reps claim must be typical of the class (experienced same thing as other class members). 4. 23(a)(4): Adequacy of Representation the rep will fairly and adequately protect the interests of the class (rep is looking out for classs welfare)(constitutionalized by due process clause). Either the named plaintiff adequately represents your interests Or the lawyers adequately represents the class (no felons, good ethics, capable convince judge). o Hansberry v. Lee no adequate representation so Hansberry not bound to first suit; P in first suit wanted racially restrictive covenant to be enforced while Hansberry wanted to resist it. b) Types of classes o FRCP 23(b): 3 kinds of class actions, but you only have to meet one of these. 1. 23(b)(1): Prejudice class action ask whether individual actions might cause prejudice that can be avoided by using the class-action device. 23(b)(1)(A): Looks for prejudice to the non-class party 23(b)(1)(B): Looks for prejudice to the class members 2. 23(b)(2): Injunctive or declaratory relief 3. 23(b)(3): Classic damages (the one professor will most likely test on) o In addition to the pre-requisites, must also show: Predominance Requirement: Common question of law or fact predominates individual questions. Superiority Requirement: The class action is the superior way to resolve the case. c) A case is not a class-action unless the court certifies it. o Even if you call the case a class-action in your complaint doesnt mean its a class -action. You must file a motion asking for certification. When the court certifies it, it must appoint class counsel ( FRCP 23(g)). o Lose certification death of a lawsuit on Ps end because only named P is left. d) Notice of pendency o In 23(b)(1) and 23(b)(2) class actions, we do not allow people to opt out (because need a uniform answer).
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In a 23(b)(3) class action, the court must give individual notice to all members reasonably calculated (identified). This can get pretty expensive. The representative has to pay for this. o FRCP 23(c)(2)(b): Specifies content of notice. The most important thing to tell them in the notice is that the class member can OPT out. If a member doesnt opt out, they are bound by the lawsuit and will be barred from filing another one. o This notice is only required in a (b)(3) not (b)(1) or (b)(2). e) Who is bound by a class judgment? o All members except those who opted out of a (b)(3). o (b)(1) and (b)(2) members cannot opt out (thats why these classes are called mandatory classes). f) Settlement or Dismissal of a Certified Class o FRCP 23(e): This must be approved by the court. o We cannot settle or dismiss on our own. g) Subject-Matter Jurisdiction o Class action can invoke federal question jurisdiction (and they usually do) because the claim asserted deals with a federal issue. o To invoke diversity jurisdiction in a class action: i. Citizenship look to reps citizenship and make sure it is diverse from all defendants ( Ben-Hur v. Cable). ii. Amount in Controversy if the reps claim exceeds $75k, each class members claim amount does not matter. Exxon Mobil Corp. v. Allapattah Services, Inc. Each members claim gets into federal court through supplemental jurisdiction. Synder v. Harris Separate and distinct claims could not be aggregated. Aggregation has been permitted only (1) in cases in which a single plaintiff seeks to aggregate two or more of his claims against a single defendant and (2) in cases where two or more plaintiffs unite to enforce a single title or right in which they have a common or undivided interest. o Class-Action Fairness Act (28 U.S.C. 1332(d)): Allows class actions to be brought in federal courts: 1) In certain types of class actions, only need minimal diversity 2) Class action in the aggregate is $5 Million or more + legal certainty o Minimum Contacts: Phillips Petroleum Co. v. Shutts PJ does not need minimum contacts test for unnamed Ps in FRCP 23(b)(3), but focuses principally on notice.

DISCOVERY
Discovery rules are very liberal. Policy: We dont want any surprises at trial. A. Mandatory Disclosures FRCP 26(a): Must produce information for the other party even if they that party doesnt ask for it. Requires reasonable investigation Must do this at 3 different times: i. 26(a)(1): Initial Disclosure - (early in the case) identify people with information, etc. Amendment: Requires party to produce only information that will support its claims and defenses. (Cummings v. General Motors Corp. D did not have to produce video showing GM crash tests because it hurts their case.) ii. 26(a)(2): Disclosure of Expert Testimony disclose identity of any expert witnesses to be used at trial. iii. 26(a)(3): Pre-trial Disclosures (late in the litigation) disclose everything that will be raised at trial. B. Discovery Tools (can use against non-party, too) Good question for test: Identify which ones can be used against a non-party? Discovery Hold-Off (Fed Ct): No discovery for first 90 or 120 days 1. Deposition the deponent testifies under oath Governed by FRCP 30 and 31 Live oral testimony not in court; usually takes place in some lawyers office; transcribed and recorded Can depose both parties and non-parties. o A nonparty must receive notice & be subpoenaed. If you dont subpoena them, that nonparty does not have to show up. If they agree to show up, no subpoena necessary. o You never have to subpoena a party, just have to give notice. 10-7 Rule (Fed Ct): 10 depositions, 7 hours max each. (Most state courts do not have these limits). Objections to Deposition Questions:
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o Objections as to form are correctable. o Substantive objections are preserved. o Objections to leading questions must be made or waived. o Strategy: Run out 7 hour clock; coach by leading witness to answer a certain way Rule: Witnesses (party deposed) have to answer the questions. o Caveat: Except when privileged information is involved (their lawyer will object to it). Rule: Depose a witness once (even if youve learned things later). Next time you see th em would be at trial. o Caveat: Good reason. Written Depositions (rarely used) o FRCP 31: Used when.. 1) When you have only a limited number of questions to ask (dont have to fly there) 2) Or when you dont think a court would order an oral deposition (witness confidentiality or very important people)

2.

Interrogatories - written question answered in writing under oath Governed by FRCP 33 Usually helpful to get background information stuff Can only be sent to parties and not to non-parties. 30 days to answer. Fairly cheap since no travel is involved. Most abused discovery device since the recipient must thoroughly answer the question. Requires other side to 1) reasonable inquiry and 2) broader scope of knowledge (unlike a deponent who only answers what he or she knows at the time) Presumptive Limits: No more than 25 questions. One topic One question (ex: 1. a.. b.. c..) Contention Interrogatories a. Pure Contention just asks what do you contend? o Get them to narrow down their issue o Can ask legal question (but not pure legal) such as an application of law to fact. Evidentiary Contention asks what evidence do you contend? Request to Produce written request to get access (to documents, ESI, tangible things, property where accident occurred, etc) Governed by FRCP 34 FRCP 34(c): allows request to get information from nonparties o Again, nonparty should be subpoenaed. Mainly asks for documents (mail them the document request), and the other party can respond (make the copies for you) or object. Documents are important because they are more truthful than people, and juries tend to believe things that are written down more than believing people. Producing party bears the cost; magistrate/district court levels usually coordinate discovery stuff. Lawyers have to be careful because they can get sanctioned when something goes wrong in discovery. Medical Exam Governed by FRCP 35 1) Can only be ordered for a party or somebody in the partys custody or legal control o Custody or legal control very narrow margin; mainly for children; does not include employees o Does NOT apply non-parties. 2) Must have a court order in advance (or otherwise, this could be used as a tool of harassment) 3) Standard is for good cause. Request for Admission (least used) Governed by FRCP 36 Can only be sent to parties (mailed) Requires you to admit or deny any discoverable matter. Purpose: narrowing down the issues o Failing to deny = admitting and binding. The jury will be instructed that it is true o Objective is to narrow down the issues. Smart lawyers use this in almost every case. o If you deny something that turns out to be true at trial, the other party can recover for cost of proof sanctions including attorneys fees (can be big money 50k)
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3.

b. 4.

5.

6.

o Dont get cost of proof sanctions for immaterial issues o If it is a close call which reasonable minds could disagree, courts could not sanction Fed ct: If you do not timely respond, you are deemed admitted. Presumptive Limit: 25 RFAs

Supplemental Responses (FRCP 26(e)) When you respond to discovery, you are only required to tell them what you know at the time. Later on, if you learn new things or that what you said initially was wrong, you have an affirmative duty to update your answers. Failure to supplement or timely supplement may result in failure to use the updated information at trial. Live Testimony We prefer live testimony. If there is a living person who can testify at trial, we make you present that live person instead of alternative ways such as deposition transcript or videotape. You have to bring them in or cannot use their testimony (not even deposition). Caveat: Except when they are not within subpoena power of the court deemed unavaible for trial. Ie: vacation, etc. Then we can use their discovery in lieu of live testiomy. C. Scope of Discovery 1. Standard FRCP 26(b)(1): we can discover anything RELEVANT to a claim or defense o The name and (if known) addresses and telephone numbers of each individual likely to have discoverable information that party may use to support claim or defense. We can discover things reasonably calculated to lead to admissible evidence. o Ex: Hearsay hearsay is not admissible, but you can still discover it. o Insurance co wants to inspect dead body to see if P committed suicide relevant. o Suit against abortion doctor who failed to inform risk of sepsis; asking for info on all his patients not discoverable because of privacy rights. o P (who has HIV) wants discovery of blood bank who donated blood to him courts split o Deposition of suicidal P who could not be deposed courts allowed limited deposition with a referee there. Exceptions to Relevance Rule: o Parties can reject presumptively discoverable evidence because of undue burden o Move for 26(c) protective order. Privileged matter is not discoverable. a) Attorney-Client Privilege: everything said between attorney and client is confidential In the corporate context, attorney-client privilege extends to low level employees, not just to those in control of the corporation. The work-product doctrine protects oral statements made to attorneys, which necessitates a showing of undue hardship on the part of the party-opponent who seeks that information. (Upjohn Co. v. United States) Does not have to be in anticipation of litigation. It can be seeking any legal advice (have not brought suit yet) b) Spousal Privilege things between spouses are confidential c) Priest Privilege? Overall, states differ on what they allow. The objective is to preserve information between these relationships, because shielding these things from discovery is beneficial. d) Federal Privilege (Federal Rules of Evidence 501) In state law cases, state law privilege applies. For federal claims, federal privilege law governs. You can have one state law privilege and one federal law privilege in the same case. e) After Hickman v. Taylor, Supreme Court decided: You cannot use interrogatories to request documents. Witness statements, however, are not protected by attorney-client privilege (because no such thing as attorney-witness privilege). Should protect the work product of a lawyer. (hence below) f) Work Product o FRCP 26(b)(3): trial preparation materials This is material prepared in anticipation of litigation (not routine stuff). o Work product is protected from discovery (policy: prevent freeloader problems). ie: hiring a private eye to get interviews, reports, witness statements, etc (generated in anticipation of litigation) o Qualified Work Product Protection Rule: Work product can be overridden
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2.

You can overcome my work product if you show substantial need and its not otherwise available. ie: Part of the report from the private eye was a witness statement. Suppose the witnesses are not available anymore and cannot be deposed. You may be able to get THAT part of my work product. Absolutely Work Product Protection Rule: Some work product is absolute (that you will never be able to get). 26b(3)(B): Mental impressions, conclusions, opinions, and legal theories of a lawyer are protected. ie: If you get the witness statement, you just have to get cut and dry stuff that does not include mental impressions etc. Facts are not protected. Work product can be generated by the party or any rep of a party NOT just lawyers. ie: private eye.

D. Expert Discovery Expert Witnesses 1) Percipient Expert Testimony: witness; treated the party; subject to normal discovery rules 2) Consulting Expert Testimony: always hired in anticipation of litigation or during litigation. You hire because you want their opinion but not necessarily at trial such as advise on settlement or explain information about the case 3) Trial Expert Testimony: hired for trial, favors the plaintiff who pays them; really expensive (usually biggest expense); required to show up since theyre paid; subject to discovery, but dont get the discovery until the end of the case (fed ct) 90 days before trial normally. o FRCP 26(b)(4): Federal courts makes you disclose to the other side lots of things about the expert how much theyre getting paid, how many trials theyve testified to, basically entire testimony. You also have to pay the e xpert to be deposed. E. Discovery Sanctions Rule 11 Sanctions do not apply to discovery. If either side brings a discovery motion, the losing party will have to pay the attorneys fees for either bringing that motion or successfully resisting that motion. Rule 37(a)(1) Meet and Confer Rule parties must make a good faith attempt to resolve issues with the opposing party before making a motion for sanction. Only after the meet and confer process can you file a motion with the court to (1) motion to compel discovery (2) motion for protective order o 37(a) is only money Rule 37(a)(2) Mandatory Sanction Rule o Caveat: If you dont meet & confer, you lose. o Substantial Justification Rule If you have substantial justification, you wont be sanctioned even if you lose. Most judges will find the losing party to have substantial justification. Since attorneys are responsible for sanctions, it is generally high risk to file discovery motion. What counts varies from judge to judge. Rule 37(b) Sanctions (only applies to court-ordered discovery): winning party may get a court order requiring losing party to do something. If someone violates a court order, they can get sanctioned more than just monetary fines (discretionary sanctions). It can go up to doomsday sanctions. The CT can dismiss a client, throw people in jail, report the lawyer to the bar, etc. o Have to prove the party did something wrong willfully and not accidentally. If they or the lawyer reckless disregard the court order discovery, more sanctions can be imposed. (Cine case) You cannot ask for 37(b) sanctions in 37(a) land. Party would have to violate a court order first. In the beginning, you can only ask for monetary sanctions. Rule 26 Conference: Discuss proposed schedule Id like to have trial in 2 years. You hash it out with the other party and talk about intermediate dates. Then you prepare a Rule 26 Report this is what we agreed to with the courts approval. The court will then give you a Rule 16 order which spells out all of your deadlines (disclose discovery by this date, trial on this date, etc). Federal courts tend to be quick on trial (2-18 months). If you do not comply with Rule 16 dates, youll be sanctioned.

PRE-TRIAL ADJUDICATION
Getting a suit out of the litigation stream. A. 12(b)(6) Motion to Dismiss for failure to state a claim With this motion, the court cannot look at evidence. The court looks only at the face of the complaint. The court looks for: o If everything the plaintiff said was true, would she win?
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If no, then it makes no sense to have this case go forward, and so it should be dismissed. Under Twombly and Iqbal, the plaintiff must state facts supporting a plausible claim, and its under the judges common sense and experience to figure out if its plausible.

B. Motion for Summary Judgment Governed by FRCP 56 The court can look at evidence. FRCP 56(a): standard the moving party must show: 1) No genuine dispute on a material fact (Lundeen v. Cordner) 2) Moving party is entitled to judgment as a matter of law Court grants this motion because a trial is not needed. Only reason we go to trial is to resolve disputes of fact. Evidence comes from the parties. It is proffered before trial. It is not evidence from open court. o Evidence is stuff signed under penalty of perjury or sworn under oath depositions, interrogatories, affidavits, declarations, etc. Therefore, pleadings is not evidence. Pleadings can be relevant for review where party fails to deny a claim. Courts are nervous about granting summary judgment because it deprives people from jury trial. Matsushita Elec. Industrial Co. v. Zenith Radio Corp. plausibility standard your inference has to be at least as good as the competing inference. Anderson v. Liberty Lobby, Inc. - When a claim must be decided by clear and convincing evidence, the burden of proof at trial should be taken into account when deciding the motion for summary judgment o Together, they stand for the proposition that we should not be overly cautious here. o Celotex Corp. v. Catrett innovated a 2-step process for summary judgment: 1. Moving party has burden of proof. It has to put forth evidence to prove that there is no genuine issue of material facts (indicating that the party would win). Use either affirmative evidence or prove other side doesnt have evidence. 2. If Stage 1 satisfied, the buren is shifted to the non-moving party. Non-moving party can agree or deny that the moving party has met the burden. Now, non-moving party must show that there is a genuine issue of material fact. Celotex says we can grant summary for a defendant even if the defendant does not give us evidence. A defendant can be granted summary judgment when the plaintiff lacks evidence. Summary judgment is always discretionary even if you meet the standard. FRCP 56(f): Allows summary judgment motion to be denied or ask for a continuance in a motion. You can say that this motion is filed too early and dont have enough time to get the evidence yet. If allowed m ore time, will be able to get more evidence. Policy behind FRCP 56 Summary Judgment Motions: Allow jury trials and dismiss unmeritorious claims. Hypo: Plaintiff (pedestrian) sues Defendant (driver) for running a red light and hits Plaintiff. Defendant moves for summary judgment and presents affidavits from a whole bunch of witnesses that says that the light was green and therefore defendant did nothing wrong. Plaintiff now must come up with some evidence and cannot rely on her pleadings. Lets say that the plaintiff comes up with one affidavit showing contrary statements. The judge reviews this and sees that there is a dispute of material fact. Therefore, the judge must deny summary judgment and let the case proceed to trial. Scott v. Harris video tape showed that there was no dispute and so summary judgment was ok even though there were dueling affidavits.

When facts are undisputed, but it is still not clear how the case will turn out. Ex: Someone takes a pill once a day to stay alive. Take two pills & die. The guy was found died, his stomach was pumped, and two pills were found. Either a suicide or an accent, and the moving party (insurance co) showed that before taking the pill, guy drafted a new will. The nonmoving party (family) showed evidence that he made fishing plans shortly before taking the will. Must look at what the jury would decide by a preponderance of the evidence. Point: Its difficult to predict what a reasonable jury would do. Policy: Judges may think its unjust to let a jury decide if they think juries may come out the wrong way. Strategy: Look to see if a case will get passed summary judgment in order to figure out if the case is worth litigating. Dismissal of Actions McCants v. Ford Motor Co. P filed suit in wrong forum, so D moved for summary judgment. Knowing he would lose, P sought to dismiss the suit (to avoid being dismissed with prejudice). So in order to voluntary dismiss your lawsuit, you must seek permission from the court.
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Dont need courts approval in any of these situa tions (plaintiff side): 1) Defendants give consent (rare because if you lose, you have to pay for their costs). 2) Defendant hasnt answered and no costs were incurred. 3) FRCP 41(a) Dismissal: Voluntary Dismissal. First one of these is dismissed without prejudice. The second one of these is dismissed with prejudice. 4) FRCP 41(b) Dismissal: Involuntary Dismissal. Other party can bring this motion if you are not doing anything to move your case forward (fed ct, loosey goosey. State cts, hard and fast rules). Voluntary Dismissals because of Defendants Fault: 1) Defendant defaults. Get clerk to enter, default entered. If there are local rules regarding judgment, ask for that judgment in your complaint. When there is evidence to help calculate damages (credit card debt), the clerk may use it to enter, clerks judgment. If the damages are not easy to calculate, you need to get an approval hearing to get a courts judgment. Hard to vacate default judgments.

TRIAL AND RELATED MOTIONS

Preparations for Trial: Prepare jury instructions (figure out different laws and fight with other side). Prepare exhibit binders and prepare arguments as to why exhibits are not hearsay, etc. Massively expensive, not fun (trials are harder in federal courts). A. Bench Trial No jury. Either you had no right to a jury trial, forgot to ask for one, or both parties waived that right. The trial is decided by the judge. Advantages: o Very quick because the judge may very knowledgeable in that area of law; lots of stuff on the paper. o Cheaper o Avoids inconsistent verdicts. FRCP 52: Trial judge has to explain her result in writing and specify all the factual findings. o Reasoning: Judges can be lazy. Sometimes in state courts, the trial judge may ask the prevailing party to submit an order, basically asking to drafting their reasons why they should win, and the judge will sign off on it. In Roberts v. Ross, the third circuit said that trial judges may not do this pursuant to Rule 52. Its not an accurate method and does not help with appellate review process. B. Right to a Jury Trial Issues of fact are decided by jury. Ie: whos telling the truth and whos lying? Jury will decide damages as well (that is also a fact question). Judge will guide jury on the law. When do we have a right to jury trial in federal court? 7th amendment applies only in federal civil cases. It does not apply in criminal cases nor to state courts. Two points about 7th amendment: 1) Preserves the right (does not create or grant right). o Therefore, summary judgment does not infringe on that right (Galloway v. United States). 2) Does so only in actions at law (not at equity). When can you lose your right to a jury trial? Because of procedure. Because of summary judgment (never impanelled a jury). Because of JMOL (never got to the jury). Historical Test Whether we have that right depends whether we would have that right in 1791 in the common law of England (when 7th amendment was ratified). Why? Because it says preserve. So how do we apply this historical test? In Sholfers Union v. Terry, the supreme court said to look at two things:
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1) o o 2)

Is there a 1791 analog to this claim? Whatever the cause of action is, does this claim or an analogous claim exist in 1791? This part of this test is always punt, because how the hell do the justices know? Look at the remedy sought. What is the plaintiff after? Need to know the difference between remedies at law and remedies at equity. o Today, we have emerged both courts in the federal system (and most states). However, back in 1791, we had separate law courts and equity courts. o You have a right to a jury in law courts but not courts of equity.

C. Law vs Remedy o Remedies at law: compensatory damages o Equitable remedies: injunction, specific performance, rescission, reformation Hypo: You have a huge backyard, and its lovely. Everyday, theres someone trespassing on your land. If you sue at law, your only remedy is compensatory damages. However, compensatory damages arent going to help you much, but there was not much harm done to your hard. What you want is an injunction (stop him from trespassing). It is enforcing by contempt. We sue and we are asking for two damages: 1) compensatory damages for past trespass and 2) injunction for future trespasses. Do you get a jury? o Back then, no, because they would look at the important part of that case (center of gravity) which is injunction. Since injunction is an equity remedy, you would not get a jury trial on any of the issues. o Today, 2 cases have come up to change the outcome: Beacon Theatres (1959) and Dairy Queen (1962) together give us the following rules: a) We determine the jury right issue by issue (not center of gravity). b) If an issue of fact underlies your law claim and your equity claim, you get a jury. c) Generally, we try the jury issues first. In our example, 3 issues would get litigated: 1. Did the defendant trespass? Relevant to damages claim so jury decides this. 2. How much is the damage? Relevant to damages claim so jury decides this. 3. Do you meet the requirements for an injunction? No jury on this, because it is pure equity. Therefore, the judge will decide this. D. Motions at Trial In a civil case, the judge has some control over the jury. It can keep a case from going to a jury or stop the jury from doing something goofy. In a civil case, you need to have enough evidence to let the case get to the jury. On the other hand, in a criminal case, the defendant has a right to a jury trial. 1. Motion for JMOL (Judgment as a Matter of Law) (DV motion) Governed by FRCP 50(a) Used to be called directed verdict. Judge takes the case away from the jury. FRCP 50(a)(1): Standard - Judge will grant motion if reasonable people could not disagree on the result. The court cannot order this on its own. A motion must have been filed. FRCP 50(a)(2): You can only make this motion after the other side has been heard at trial. Functional equivalent of Motion for Summary Judgment; just occurs at a different time.

Hypo: Suppose the elements of a claim are A,B,C, & D. Say the plaintiff only presented evidence for A,B, & D. The defendant can move for JMOL, and it will probably be granted because reasonable people would not say that the claim has been met. 2. Motion for Renewed JMOL (RJMOL) (called JNOV judgment notwithstanding the verdict in state courts). Governed by FRCP 50(b) Same thing as JMOL except it occurs later in the case. Occurs when somebody moved for JMOL, and it was denied. The judge lets the case go to the jury, and the jury comes up with a goofy conclusion. Same standard as JMOL. This motion must be made within 28 days after the entry of the judgment. o Using move for this at the same time as motion for new trial. To move for this, you must have moved for JMOL at a proper time at trial or else your waive RJMOL. The court cannot order this on its own. It must be moved.
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In our earlier hypo, say the judge allowed the jury to decide it. The jury comes back with a verdict for the plaintiff. The defendant can file for a RJMOL. It will probably be granted. 3. Motion for New Trial Governed by FRCP 59 FRCP 59(a): Grant new trial when substantial justice hasnt been done in one of these historical reasons o Incoherent jury verdicts (Magnani v. Trogi). If possible, mold the verdict to get rid of parts that are inconsistent with the law ( Robb v. John C. Hickey, Inc. & Duk v. MGM Grant Hotel Inc.) FRCP 59(b): Motion must be made within 28 days after judgment has been entered. Occurs when the trial court judge was convinced that something was done wrong which affected the outcome of the case If granted, there will be a new trial instead of a reversal. Reasons why we grant new trial: o Solving injustice. Lots of things can happen during trials that dont show up on transcripts credibility of witnesses, volume of voices creates injustice. o Misconduct Misconduct of Parties by Counsel ie: improperly influencing the jury wasnt it true you were convicted of a felony? Objection! Withdrawn. Misconduct of Jury juries cannot attack their own verdict by submitting evidence of what happened in the jury room (Ford Motor Credit Co. v. Amodt) Juror who had learned about the death of his son and wished to return home and abide to vote of the majority new trial granted. Bailiff took jury to lunch and had alcoholic beverages in moderate amounts new trial NOT granted. Jury entered a quotient verdict (took each judgment, totaled, divided by 12), seen as a compromise new trial NOT granted (Huckle v. Kimble) As long as juror did not deliberately lie during voir dire to get on the jury and was biased, this was ok and new trial NOT granted (McDonough Power Equipment, Inc. v. Greenwood). Standard: Anything that will convince the judge that we ought to start over. The judge can order this on his own. This motion is less drastic than RJMOL because the prevailing party may still prevail at trial again, whereas RJMOL takes the victory away from the prevailing party and enters judgment for the other side. FRCP 60 Motion: Relief from a Judgment or Order Asking for a different relief. Relief is the same as JMOL, Summary Judgment, etc. changing the judgment. Basis for Filing Motion: a) Clerical Mistakes (rare): clerk or judge made a clerical mistake on the judgment. This can be filed at any time. All you have to prove is that there was a mistake. b) Everything else (more common): 1) Mistake, inadvertence, surprise, or excusable neglect; o Your mistake forgot to introduce this piece of evidence or didnt show up to court because of whatever. Limitation: must be reasonable excuse (most of the fight here) which convinces the court. Wrong about law is not a good reason (Briones v. Riviera Hotel & Casino). Factors: Prejudice, length of delay, reason, good faith by moving party, illness Limitation: File the motion within a reasonable time (ex: after you get discharged from hospital); SOL: No later than after 1 year. 2) Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); Must be discovered and not newly created. Evidence must have made a difference in the judgment (either liability or damages). Limitation: No more than after 1 year after entry of judgment or order or the date of the proceeding. 3) Fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; Minor perjury that doesnt affect result not relevant here. Must be material perjury so that judgment should be vacated and new trial ordered.
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4.

In fed ct, even if your lawyer is incompetent and cant figure out perjury on the stand, motion will be granted if there was perjury. In state cts, CA for instance distinguishes between intrinsic fraud (ie: perjurty) and extrinsic fraud. Limitation: No more than 1 year after entry of judgment or order or the date of the proceeding. 4) The judgment is void; Lack of PJ or SMJ 5) The judgment has been satisfied, released, or been reversed or vacated; or applying it prospectively is no longer equitable; or Judgment paid; party released judgment discharge happened after bankruptcy; judgment based on earlier judgment (first suit that was basis got reversed); applying injunction retroactively 6) Any other reason that justifies relief. Circumstances that dont fit into above category something rare or extraordinary that warrant setting aside judgment as justice requires. No SOL. Changes in the law never a basis for Rule 60 motion. o Strategy: Instead, on appeal, changes in the law can have the judgment reversed. Rule 60 only applies in the rendering court.

Exceptions to the Sanctity of Jury Room (fed system) 1) If extraneous prejudicial information was improperly brought to the jurys attention 2) Whether any outside influence was improperly brought to bear upon any juror, or 3) Whether there was a mistake in entering the verdict onto the verdict form. Weight of Evidence Original Trial Preponderance of the Evidence (civil) New Trial Great Weight of the Evidence (what a reasonable jury would find) Criminal Trial Beyond a Reasonable Doubt (always) Additur vs. Remittitur o Additur when judge thinks the jurys damage award is inadequate against the great weight of the evidenc e; gives defendant choice between greater award or new trial. Not allowed in federal court (prohibited by 7th amendment and ruled in a S/C case). Ok in state court because 7th amendment is not applicable (Fisch v. Manger). o Remittitur when judge thinks the jurys damage award is against the great weight of the evidence Allowed in federal court (because for 7th amendment purposes, youre not making up a new judgment but rather getting rid of the surpluses whereas additurs create entirely new judgments). Partial New Trial New trial on damages only, when jury answer is inconsistent on that specific point/issue (disfavored) ( Doutre v. Niec) Cannot give new trial on liability without also re-doing damages. Should be exercised with caution (Hutton v. Fisher) How to Get Extension on 28-Day rule Ask the court to withhold entry to judgment. With this, you can buy more time. E. Jury Instructions Judges job to apply the law to the case (when there are undisputed facts summary judgment, etc.) Juries job to apply the law to the facts. o FRCP 51 Instructions: Parties get together and has out a set of proposed instructions. Create a list of what they agree on and what they dont agree on. Stipulated Instructions: look to past instructions that the court has previously approved. These instructions are unfortunately limited to your run of the mill cases. Disputed Instructions: decide whether the particular instructions are relevant to the case. Jury instructions come at the end of trial after closing statements and before deliberations. However, court judges sometimes give basic instructions before opening statement while detailed instructions come at the end. When instructions are erroneous, the party who committed that error are deemed to have waived that issue (because its their responsibility to propose an accurate presentation of the law). o Caveat: Court has a sua sponte responsibility on some basic applications ie. preponderance of the evidence. The court has a sua sponte duty to make the erroneous instructions accurate. Problems with crafting jury instructions:
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F.

When crafting instructions in a favorable light (like a mini-brief), the trial judge may not pick your instructions because it is too misleading. o When remaining neutral on the instructions, it would be the basis of the losing partys appeal. GOAL: Meet minimum of neutral instructions but also make it favorable to your client. What juries cannot do: o Decide what the law is. o Disregard the law. (ie: in civil cases, if there is clear evidence defendant is liable, we do not let juries nullify it) Caveat: Criminal cases sometimes defendant may be clearly guilty (videotape), juries can still acquit the defendant. o Decide whether evidence is admissible. Judges decide this. Judges can routinely comment on the evidence (to witness, youre the worst liar or I think this side should win). There is historical antipathy against this, but we still retain a little bit of it. o Judges allowed to comment on the evidence when there is a stalemate ( Nunley v. Pettway Oil Co). Federal cts are strict so this is done minimally and cannot be viewed as coercive. Coercive He lied when he wiped his hands during testimony. (Quercia v. United States) o Other ways judges can influence juries: Raise eyebrow at certain things doesnt show up on transcript but the jury will see. Being mean to one side and not the other tone, etc. (thats why important to not piss off your judges with frivolous motions). In fed ct, judges cannot be involved with trial settlements instead, have a magistrate judge or mediator. In state ct, trial judges can say, I want you to settle the case. New Tools for Juries o Note-taking (30 years ago); more and more courts allow this. o Letting juries ask questions (so they can better retain information). Problems: Juries dont know the rules of evidence, and virtually every question they ask is objectionable (leading, hearsay, lacks foundation). Juries may be upset and biased against a party who object to their questions. Solution: Have juries write the question. Outside the presence of the jury, judge and attorneys can decide if the questions are objectionable or not, and the ones that arent can be answ ered. Concerns: Worried that when juries are probing at issues, they are coming to conclusions, and their questions may reveal their conclusions. We dont want parties to know what the juries because they may assume injustice if the juries are thinking unreasonably. o Allowing juries to take things in during deliberation transcripts, jury notes, jury instructions (up to judges discretion) Verdicts Types: 1) General Verdict X wins. Only type for criminal cases. No explanation needed. Available for civil cases if the parties agree to it. Cons: not internally consistent because you dont know how they reached the decision; more vulnerable to appeal because you cant tell if an error (ex: erroneous legal theory) infected the verdict Gives juries the ability to do justice. However, it does give juries a lot of discretion such as sympathize with plaintiff. 2) Special Verdict proposes certain questions to the jury. You just have them make findings of facts then dismiss them. Judges will apply the law to those findings of facts. Stops jury from sympathizing too much with one side but may stop them from their ability to do justice. Cons: Homework for juries. The simpler the case, the more probability it will be a general verdict, and the more complicated, the more likely the court is inclined to have a special verdict. The plaintiff will almost always want a general verdict, while defendants may want to give an abundant amount of questions (trick questions) so that there will be more potential to get a verdict on the defendants side. o When special verdict answers contradict each other or contradict the general verdict (inconsistent), the judge has to harmonize the verdict somehow. If it cannot be harmonized: 1) Order the jury to re-deliberate. Explain the inconsistency to them without being coercive. (Nollenberger v. United States) 2) End with a general verdict. 3) If all the answers to the special verdict are consistent, then disregard the general verdict and end with a special verdict.
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4) Order a new trial.

APPEALS
U.S. District Court U.S. Court of Appeals A. The Final Judgment Rule You cannot appeal until the trial court enters a final judgment. o Final judgment: Judgment on the merits of the entire case (so not admin stuff like discovery, costs, etc). How to figure out if something is appealable under final judgment: o After making this order, does the trial judge have anything left to do on the merits of the case? If yes, it is not final (interlocutory). You cannot appeal yet. If no, then it is final. o Ex: After judge orders new trial, this is not a final judgment. You have the right to appeal only ONCE. FRAP Appeal within 30 days from time judgment was entered (not when you received notice). o Waive right to appeal if not done in time. Notice of Appeal: I hearby appeal from the judgment from __ day; no need to list reasons. Problems with FJR: 2 years down the line, a million dollars down the line (had to finish first suit); most civil cases get resolved through settlement so have to deal with whatever error they made. Upsides with FJR: Trial judges get it right most of the time. Policy behind Final Judgment Rule Practicality (old English courts did not have Xerox machines, so records were in one place.); Efficiency (more delay if appeal occurred in the middle of lawsuits). B. Traditional Rules 1292(a): allows interlocutory review for injunction orders (along with denials of injunctions)( Liberty Mutual Co. v. Wetzel) o Preliminary injunctions almost always issued after notice & full briefing. It is granted when there is a serious injunction stop this guy from coming to my house to beat me. Appealable through 1291(b)(1). o Permanent Injunctions are done after trial, and only appealable subject to final judgment rule. o TROs (temporary restraining order) are often issued without notice and without full briefing and are by definition, last until the preliminary injunction hearing. They are not immediately appealable. because the preliminary injunction will be immediately appealable. 1292(b): allows interlocutory review when district court and court of appeals agrees to let you appeal Judgments are only final when all of the parties are out of the lawsuit. Fed cts do not want piecemeal appeals (more strict about FJR)(Jetco Electronic Industries, Co. v. Gardner). C. Exceptions to the Final Judgment Rule 1. FRCP 54(b) Findings: for cases with multiple claims and multiple parties, when we wrap up one claim or party (Sears Roebuck v. Mackey). 2. Collateral Order Rule: Allows the court of appeals to hear certain interlocutory issues. It is totally in the court of appeals discretion. o very narrow; pretty much limited to where the state is immune from suit. o Upside: doesnt need anyones permission. o Cohen v. Beneficial Industrial Loan Corp. S/c allowed before of policy reasons: 1) final in a sense because it was the district courts last word on the bond issue; 2) not an intermediate step of the lawsuit, more of a separate step merger requirement (lots of decisions merge in the judgment that lead to the final judgment); 3) unreviewable later (this can case can come out one of two ways (win or lose) but the plaintiff would not be able to appeal this bond issue anyway. o Will v. Hallock COA can review collateral orders if the court conclusively determines the disputed question, they can resolve an important issue completely separate form the merits of the action, and that issue is effectively unreviewable on appeal from a final judgment. o Qualified Immunity Motion when state officials have their QI motion denied, they can immediately appeal. Theyre not immune when they clearly violated someones constitutional rights.
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3.

4.

Forum Selection Clauses D can immediately appeal the forum selection rather than be forced to litigate entirely in another court. o Contempt went to jail because didnt follow court order (However, United States v. Nixon president doesnt have to go to jail before he can appeal a contempt order). Pragmatic Finality S/C has decided some cases that are not ordinarily appealable. However, these are outlier cases that will not likely recur. o Treat lawsuit as if it is final, even though it is not. ( Brown Shoe Co.v. United States modified by Coopers & Lybrand v. Livesay) o Default rule is that only a very narrow part of suit can remain open ( Gillespie v. United States Steel Corp.) Always allowed for post judgment attorney fee awards ( Budinich v. Becton Dickinson & Co.) Allowed for denial of class action certification FRCP 23(f) ( Coopers & Lybrand v. Livesay took it away and Congress restored it) o Allowed in courts of appeal anytime that court would have later appeal jurisdiction. ( La Buy v. Howes Leather Co. ) o Discretionary power- dont have to issue writ but is generally granted when trial court clearly abuses its discretion (Schlagenhauf v. Holder) Abuse of discretion Excess of jurisdiction Refusal to exercise jurisdiction o Factors that should be considered (In re Cement Antitrust Litigation) Prejudice not correctable on appeal First impression Adequate alternative relief Clearly erroneous error Error that is often repeated Should be extraordinary circumstances (Will v. United States) because it is disruptive of the judicial process (Kerr v. United States) FRCP 23(f): when court denies class certification (discretionary appeal) o Extraordinary Writs Technically not an appeal; independent proceeding in the court of appeals; a new lawsuit against the lower court. Occurs when you actually sue in the court of appeals, and you ask the court of appeals to make the trial court do something or not do something o Mandamus: ask higher court to stop a lower court from exceeding its jurisdiction. o Common Law Rule: Like equitable remedies, it may be granted or withheld in the sound discretion of the court. All Writs Act you can file whatever writs you typically file o Writs of mandamus o Writs of prohibition Writ of Certiorari FRCP 4: 4 out of 9 justices must vote to hear the case. o Three Outcomes: 1) Certiorari granted intend to decide your case DIG (dismiss as improvidently granted) dont like your case anymore; perhaps realized after oral argument GDR - grant certiorari, vacate decision below, and remand to the court of appeals for reconsideration in light of something; something is usually some supreme court intervening case. 2) Certiorari denied (most of the time) 3) Certiorari with Dissent o S/C hears 1% of cases. Usual types: Important cases: death, abortion Circuit split cases want federal law to be uniform.

FRAP 4(a)(4) time limit to appeal automatically gets extended under these common things: Timely Rule 59 Motion (motions for new trial), Rule 50 rJML Rule 54 attorney fee motions (not automatic but under rule 58, you can ask the district court to extend your time to appeal). Your clock starts ticking whenever the last of those motions is decided.
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Discretionary Appeal Occurs between the court of appeal to the state supreme court o Caveat: In CA, death row cases can go straight from district court to state supreme court.

CLAIM AND ISSUE PRECLUSION

Res Judicata & Collateral Estoppel Typical fact pattern: Case 1 has gone to judgment. Judgment entered. Case 2 is pending. Question: Does the judgment in case 1 preclude us from litigating in case 2? It can either be precluded through claim preclusion or issue preclusion. A. Claim Preclusion (aka True Res Judicata the thing adjudicated) Get one case to vindicate one claim (one bite at the apple) Applies when 3 elements are met: 1) Show that both cases were brought by the same claimant against the same defendant. o Not same parties, must be in the same claimant or defendant position. Caveat: When parties are in privity (ie: husband and wife), we disregard their separate nature. 2) Case 1 must have ended in a valid, final judgment on the merits. o FRCP 41(b): On the merits - all judgments are on the merits unless its based on jurisdiction, venue, or indispensible parties. 3) Case 1 and Case 2 must involve the same claim. o 2 definitions of claim: a) Transaction Test (majority view): The claim is the same transaction or occurrence. (so you get one claim to sue for that same transaction or occurrence) (Rush v. City of Maple Heights) b) Evidentiary Test (is evidence radically different?)/Primary Rights (minority view): You get a different claim for each right invaded (ie: car accident, you get one claim for your bodily injury and one claim for your property damage). Res Judicata does not rely on the intent of the parties ( Jones v. Morris Plan Bank of Portsmouth). Can be applied no matter who wins. We just care about what was actually litigated and not what could have been litigated. Hypo: There is a car accident between Lola and Meg. Case 1: Lola sues Meg for property damage from the crash. Judgment is entered and is valid on the merits. Case 2: Lola sues Meg for personal injuries from the same crash. Do we dismiss under claim preclusion? o Elements 1 & 2 are met. Regarding element 3, under the majority view yes, same transaction or occurrence. Under primary rights, no. Hypo: Case 1: Lola sues Meg for property damage, personal injury, basically asks for everything. Judgment entered. Case 2: Meg sues Lola to recover for her injuries and property damage. Do we dismiss case 2 under claim preclusion? o No. Element 1 is not met, because Meg was not the claimant in the first case. So case 2 is not dismissed under claim preclusion. However, it will be dismissed under compulsory counterclaim. Why? FRCP 52. Lola must have asserted the claim in case 1. It was COMPULSORY! o Even if state does not have compulsory counter-claim rule, must assert it anyways (Mitchell v. Federal Intermediate Credit Bank). B. Issue Preclusion (Collateral Estoppel) Narrower than res judicata because it focuses on an issue. Always start with claim preclusion (will get rid of the whole case). Occurs when there was an issue in case 1 that was decided. The same issue comes up in case 2. If we apply case preclusion, we deem the issue already established in case, and we do not re-litigate that issue. Here, we care about who wins, because if we figure out who wins, we figure out how the issue was decided. Elements/Steps: 1) Case 1 ended with a valid final judgment on the merits. 2) Show that the same issues (that we face in case 2) were decided in case 1 (something we really did litigate). Issue Preclusion does not apply if you default or pled guilty in a criminal suit (not actually litigated.) Has to be actually and necessarily decided no hung jury. 3) That issue was essential in case 1 (why the judgment came out the way it did).
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4) Against whom is issue preclusion used? It can only be used against somebody who was a party (or in privity with a party, ie: rep) to case 1 (required by due process). 5) By whom is issue preclusion used? Starting point is mutuality. Mutuality says that it can only be used by somebody who was a party to case 1 o Mutuality is not required by due process. There is a trend to move away from mutuality (Benhard v. Bank of America Nat. Trust & Savings Assn). Non-issue Preclusion o Being used by somebody in case 2 that was not a party in case 1. o Comes up in 2 ways: a. Non-mutual Defensive Issue Preclusion: person using it is defendant in case 2. Hypo: You lend your car to your roommate. Under tort law, you are vicariously liable for what your roommate does. Your roommate drives your car and has a collision with X. X sues your roommate for negligence. Case goes to trial, and your roommate wins. Cased was litigated and determined that X was at fault, and the judgment was entered. Then, X sues me. Can I get issue preclusion? The issue was already decided, X was at fault! Elements 1-4 are met easily. For element 5, this issue preclusion is being used by somebody who was not a case 1 (me). So this is non-mutual defensive issue preclusion. Under mutuality rule, cannot use issue preclusion. However, under the majority view today, nonmutual defensive is ok if X (the party Im using it against) had a full chance to litigate in case. b. Non-mutual Offensive Issue Preclusion: person using it is a the plaintiff in case 2 Hypo: Same facts. Case 2, I sue X for the damage at your car. Can I get issue preclusion? Elements 1-4 are met. Nonmutual offensive most courts reject this. There is a trend lead by federal law however. Parklane Hoisery Co. v. Shore says that nonmutual offensive is ok as long as its fair. Parklane gives us some fairness factors (no idea how to weigh it): 1. X had a full chance to litigate in case 1. 2. X could foresee multiple suits (when X sued my roommates, X could foresee multiple suits. Yes, because X could foresee car owner suing him). 3. I could not have joined easily in case 1 (nobody knows what this means). 4. No inconsistent judgments (sometimes X wins, sometimes X loses).

ALTERNATIVE DISPUTE RESOLUTION

Rise of Alternative Dispute Resolution Clogged & delayed process of litigation led to ADR As litigation costs increases, there is more incentives to get out of the court system ADR ADR Settlement Good because it is certain, and people tend to be risk-averse. Voluntary; cannot force anyone to settle; however you can help them in particular ways 1) information gives the third party information; neutral third party (judge) says how much your case is worth 2) communicate most often demonstrated in mediation; mediators are not influenced Downsides to ADR courts are good at getting things right. Women & minorities critique it. Advantages of Arbitration faster, on average 6-8 months. o Lawyer fees cheaper, but paying for arbitrator judges are very expensive. Sometimes arbitration fees can be waived. Cheaper, in terms of legal fees More flexible. Traditionally, mandatory arbitration clauses were void against public policy (right to jury trial, due process). Federal Arbitration Act Applied to state courts when S/C held the state as arguably procedural in Southland Corp. v. Keating Upheld compulsory arbitration under the FAA in Shearson/American Express, Inc. v. McMahon
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Valid in interstate contracts (commerce clause) meaning railroad guys, movers, people who are actually moving across state lines and not merely having ties with other states. o Caveat: Applies to interstate employment contracts (Gilmer v. Interstate/Johnson Lane Corp.) S/C has expanded the scope of FAA application and limited the exceptions. Arbitration clauses have been mostly held valid.

How to decide if an arbitration agreement is void against public policy? Procedural answer: the arbitrator gets to decide the scope of his own power that is subject to limited judicial review. Substantive answer: We dont allow courts to say whether or not they like it. It is preempted by the FAA. Federal & state courts cannot review legal or factual findings by arbitrators. However, they can review substantive & procedural unconscionability. If they find either, then they can vacate the judgment. No appeal otherwise. o Procedurally unconscionable - offered to you, an unsuspecting consumer, in a way that is not obvious and you dont have the ability to negotiate over. o Substantively unconscionable - steep arbitration costs; arbitrators are actually biased (sometimes they can choose which forum, credit card companies usually choose the national arbitration forum where they usually win). What doesnt work no discovery, no class action, etc. S/C has upheld a class action waiver. High burden to meet must show actual bias. You can get arbitration awards. Mediation Only binding if you agree (whereas arbitration decision is binding). Voluntary process; cannot be forced into mediation. o However, can force you to do other ADR that are more burdensome, which creates an incentive for people to go to mediation.

ATTORNEY FEES & COSTS

American system generally does not award the winning party attorney fees (unlike England). However, the prevailing party can recover costs. Costs special type of expenses apart from attorney fees Types: filing, deposition transcripts, etc. FRCP 68 Offer of Judgment (Almost every state has an analog to this rule) o Send off piece of paper to other side that says Pursuant to Rule 68, I hereby accept X amount + costs. or say, I hearby accept X Amount (and this amount will include costs). o Once the amount is accepted, it is not revocable. o Must address costs somehow. Most of these costs are rejected. o formal rejection o offer is deemed automatically rejected or withdrawn after a certain number of days (CA 30 days) Downsides of Rejecting an offer o If you dont do better than the offer atrial, you get punished essentially. Compare what the plaintiff got at trial with that they could have gotten at the Rule 68 offer. If you recovered less, Plaintiff gets pre-offer costs (no costs that incurred after the time you received the rule 68 offer). The other side will get those post-offer costs. Point of Rule 68 is to give defendants a hammer to make formal offers & get some advantages from that. o This changes the dynamic; gives plaintiff an economic incentive to settle. o Allows defendants to pitch a Rule 68 offer as a sign of strength (dont think plaintiff will take it, and we can get their costs). In federal courts, only parties facing claims (ie: defendants) can make Rule 68 offers. If plaintiffs faced a counterclaim, then they can make a Rule 68 offer. Informal settlement offers can of course be made anytime. In states (like CA) who allow plaintiffs to make 998 offers (Cas version of Rule 68), plaintiffs cannot get pre -judgment interest. Incentivize offer o Ill accept $100,000 for this accident. If you recover more than that at trial, you get statutory interest. That $100k tells you how much the case is worth (present value). Say the interest rate is 10%, and the judgment was made 5 years from then, that is $50,000 in interest on top of the judgment amount you received.
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So you want to make an offer that is realistic (but maximum amount), because you can recover that in interest if the amount recovered is more. o If a 998 offer is declined, and you do better at trial, plaintiff can recover for additional costs (ie: expert testimony). Can only get cost-shifting with good faith offers. The court decides what is a good faith offer (Delta Air Lines, Inc. v. August). Rule 68 doesnt apply when the verdict is a defense verdict. If recovery is 0, no cost-shifting is rewarded to defendants. Rule 68 basically stops attorneys from running the clock, because attorneys would decline any offer knowing that they will win and get all the costs (working a lot knowing they will get paid a lot of it). With Rule 68, attorneys may end up working for free if they dont accept a good deal. Rule 68 can apply to class action, in theory. o However, you would have to pay every plaintiff. o Usually class actions dont go to trial anyways. o Strategy: Incentive for D to pick off plaintiffs by offering more than named plaintiff was entitled to. Claim would be moot, because P would no longer have standing ( Genesis Healthcare).

How to Recover Attorney Fees: Make attorney fees a part of costs. Statute or contract which makes attorney fees o Rule 68 applies.

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