CIVIL PROCEDURE CLASS 21

Professor FischerColumbus School of LawThe Catholic University of AmericaNovember 1, 2001

WRAP-UP OF LAST CLASS

We finished our discussion of summary judgment as one type of pretrial adjudication We learned about voluntary and involuntary dismissals as another form of pretrial adjudicationWe began to learn about directed verdictsas yet another kind of preetrial adjudication

WHAT WILL WE DO TODAY?

Continue to learn about directed verdictsLearn about various methods for judicial control of juries, including special verdicts, remittitur/additur, and bifurcation/trifurcationLearn about motions for j.n.o.v. Learn about new trial motionsLearn about motions to vacate judgmentTime permitting, begin our study of res judicata

USEFUL DIAGRAM p. 414 Glannon

Shows you sequence of trial and directed verdict/j.n.o.v. motions

PENNSYLVANIA RR v. CHAMBERLAIN (1933)

What was the plaintiff’s claim in this action?Which party moved for a directed verdict?When did this party move for a directed verdict?Could this party have moved for a directed verdict earlier? Why or why not?

PLAINTIFF’S THEORY OF LIABILITY

What was plaintiff’s theory of liability?What evidence supported the plaintiff’s theory?What evidence supported the defendant?

CHAMBERLAIN: RULINGS

How did the trial court rule on the motion for a directed verdict?Did the Court of Appeals reverse or uphold the trial court?What was the basis for Swan’s dissenting opinionWhat about the Supreme Court?

CHAMBERLAIN

Was the Supreme Court making a judgment as to plaintiffs’ and defendants’ credibility?If so, is that proper?Is there reason to suspect the credibility of the RR workers’ (on the 9 string of cars) testimony?

ANOTHER USEFUL DIAGRAM

P. 411 GlannonDiagram was originally drawn by a famous professor of Evidence, Professor Wigmore, in the 1940s. What is the Burden of Production What is the Burden of Persuasion?

HYPO

Assume that Bainbridge claimed to be standing right next to where death occurred and testified to having directly witnessed the collision, but D presented 25 witnesses, including a busload of visiting priests, who contradicted Bainbridge’s story.Should the court direct a verdict for the RR?

THE TRIAL CALENDARFRCP 40: local rules govern placing actions on the trial calendarUsually, P files memo stating that pleading is completed/filed.Some cases get preferential treatment on the trial calendarPlacing a case on the trial calendar does not equal assigning the case a trial dateThere are separate jury and non-jury trial calendars

JURY TRIAL(Review) Right to a jury is governed by Amendment VII of the U.S. ConstitutionThe procedure for demanding a jury trial is in FRCP 38 (note timing requirements)Failure to TIMELY demand a jury trial results in waiver under FRCP 38If the parties fail to demand jury trial, does this mean that the court has no discretion to order jury trial? See FRCP 39Parties can stipulate to a non-jury trial after one party has demanded a jury trial - FRCP 38

SELECTING A JURY

First order of business in a jury trial is to select a jury (voir dire) -- (See FRCP 47; Slides for Class 23)REVIEW: Are 12 members required for a jury in a civil case? If not, what is the minimum number of jurors permitted under the FRCP? See FRCP 48.

CIVIL JURY TRIALSAfter choosing a jury, the procedure is usually as follows (depends on local rules)1. Ps opening statement (usually goes first)2. Ds opening statement (option to do this after P’s direct evidence)3. P presents direct evidence (D can cross-examine)4. D may move for a directed verdict4. D presents direct evidence (P can cross-examine)5. P presents rebuttal evidence6. D presents rebuttal evidence7. P or D may move for a directed verdict. Assuming no successful directed verdict motion, closing arguments (usually P speaks first and last)8. Jury instructions (judge could also instruct in beginning and at end)

BENCH TRIALS

Less formal procedure than jury trialsOften, the judge does not require/permit opening statements or closing arguments. Why do you think this is the case?Obviously, there is no need for jury instructions in a bench trial!

EVIDENCETypes of evidence include:2. Deposition testimony3. Documents4. Other relevant itemsElaborate rules of evidence apply to determine what is and what is not admissibleThere are Federal Rules of EvidenceMany states follow these federal rules

CLOSING ARGUMENTSBecause evidence is presented in a piecemeal fashion, it is hard for the jury to get a coherent picture of the caseThe purpose of closing arguments is to give the jury such a coherent picture of one party’s caseIs is acceptable for closing arguments to be highly emotional?Can closing arguments include facts not in evidence?

Judicial Control of Juries in Jury Trials

1. Jury Instructions2. Special Verdicts3. Bifurcation/Trifurcation4. Remittitur/Additur

JURY INSTRUCTIONS (Rule 51)

What is a jury instruction?When are jury instructions given?Parties usually submit proposed jury instructions and the court determines the final jury instructionsPattern jury instructions are mandatory in some jurisdictionsIf you want to appeal based on faulty jury instructions, you must object before jury retires to consider its verdict

QUESTIONS ON JURY INSTRUCTIONS

Can a judge instruct a jury that the plaintiff should win? Can a judge summarize the evidence in jury instructions?What happens after the judge instructs the jury?

JURY DELIBERATIONS

Jury retires to deliberate, usually under the supervision of the bailiffIn civil cases, jurors usually are permitted to leave for the night.However, when jury deliberations are recessed, the judge will tell the jury not to discuss the case to anyone and not to read media coverage of the case

VERDICTSWhat is a general verdict?What is a special verdict? SEE FRCP 49What is a general verdict with interrogatories? SEE FRCP 49What are the advantages and disadvantages of special verdicts?Sometimes the judge polls the jury to make sure the verdict is agreed on by the required number of jurorsHow many jurors must agree on the verdict in federal court? SEE FRCP 48

JURY DEADLOCK

What happens if the jury cannot agree on a verdict?

BIFURCATIONFRCP 42(b)Bifurcation: liability and damagesTrifurcation: causation, liability, and damagesWhat should a court take into consideration in determining whether to bifurcate a trial?Must birfucated trials be tried before the same jury?What are the advantages of bifurcation?What are the disadvantages of bifurcation?

REMITTITUR/ADDITUR

What is remittitur?What is additur?In Dimick v. Schiedt (1935), the Supreme Court considered the constitutionality of additur. Found that it was not constitutional but suggested it would allow remittitur to stand.Has since given mixed signals about whether it will continue to hold additur unconstitutional.

J.N.O.V.

J.N.O.V. stands for the Latin: judgment non obstante veredictoWhat is another name for a J.N.O.V.?Governing FRCP: 50(b)Effectively overturns the jury verdict where no reasonable jury could find for the party who won the verdictWhat prerequisites exist for a J.N.O.V.?

J.N.O.V. HYPO

Plaintiff Pedestrian sues Defendant Driver for negligent driving. Pedestrian has put on its evidence and rested its case at trial. Defendant Driver moves for a directed verdict. The ground for the motion is absence of evidence of unreasonable care. Why would it make sense for the judge to deny the first motion for a directed verdict and then, if the jury finds for P, grant D’s motion for a j.n.o.v.?

IS A J.N.OV. CONSTITUTIONAL?

Remember Amendment VII: “No fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of common law.”The U.S. Supreme Court has held that there was a common law analogue to the directed verdict but no DIRECT common law analogues for the j.n.o.v.So is a J.N.O.V. constitutional? Why or why not?

SAVING LANGUAGE IN RULE 50(b)

“If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion.”

NEW TRIAL MOTIONS

FRCP Rule 59What are the time limits for making a motion for a new trial?What are the grounds for granting a motion for a new trial?Can a judge grant a new trial on its own initiative? In what circumstances? What time limits apply? See FRCP 59(d).

GROUNDS FOR GRANTING A NEW TRIAL INCLUDE:

Judge realizes he mistakenly admitted evidence over correct objectionNewly discovered evidenceJudge realizes she wrongly instructed jury over correct objection (see FRCP 51)Verdict against the weight of the evidenceExcessive/inadequate verdict (see remittitur/additur above)

ADDITIONAL GROUNDS FOR NEW TRIAL

Improper conduct by counsel or judgeJury misconduct (e.g. verdict not unanimous/inconsistent)When can misconduct in a jury’s deliberations be grounds for a new trial? To what extent is what is said in the jury room admissible? See Fed. R. Ev. 606(b) at CB p. 510Do you agree that Fed. R. Ev. 606(b) strikes an appropriate balance?

MOTIONS TO VACATE JUDGEMENT

FRCP 60 - judgments may be vacated both for clerical mistakes (60(a)) and other reasons set out in 60(b)Can you move for a j.n.o.v., new trial, and motion to vacate judgment at the same time?

CLERICAL MISTAKES IN JUDGMENTS OR ORDERS

FRCP 60(a)When can courts correct clerical mistakes in judgments, orders, or other parts of the record?What is a “clerical mistake”?

60(b): OTHER REASONS FOR VACATING JUDGMENT

2 categories of motions:1. Motions based on some grounds are subject to a timing limitation that they must be made no more than 1 year after entry of judgment or order: which grounds are these?2. Motions based on the other grounds for a 60(b) motion must just be made within a “reasonable time”. Which are these?

PRACTICE EXERCISE 20

CB p. 530

CATCH-ALL CATEGORY: FRCP 60(b)(6)

“for any other reason justifying relief from the operation of the judgment”reserved for extraordinary circumstancesCan the catch-all category be used for motions that would also fit within another 60(b) category?

EXPLORING THE SOUNDNESS OF JURY-CONTROL MECHANISMS

You are a member of a new organization, Save American Juries, made up of lawyers, judges and legal scholars who have organized to find ways to engender due respect for the right to jury trial in civil cases and lobby legislators to protect that right. Take realistic positions on the motions for directed verdict, j.n.o.v. and for a new trial. Be prepared to defend these positions.

CLAIM PRECLUSION

Also known as the doctrine of res judicataWhat is res judicata?What is the idea of “merger” and “bar” - see Restatement (2d) of Judgments s. 17 at CB p. 885What is the purpose of res judicata?What does FRCP 8 (c ) say about res judicata? Why?NB. Res judicata can be waived!

CLAIM PRECLUSION V. ISSUE PRECLUSION

What is the basic difference between claim preclusion and issue preclusion? (see CB p. 884)What is the difference between claim preclusion and stare decisis?

CLAIM PRECLUSION

Does claim preclusion extend to claims only to claims that were made in the first lawsuit, or does it also extend to claims that could or should have been litigated in the first lawsuit?

ELEMENTS OF RES JUDICATA

1. Prior suit that proceeded to a final valid judgment on the merits2. Present suit arises out of same claim as the prior suit3. Same parties to both suits, or parties are in privity

FINAL VALID JUDGMENT ON THE MERITS

VALID: To be valid, court rendering judgment must have valid subject matter and personal jurisdiction (if action dismissed for lack of p.j. or s.m.j., no claim preclusion for action brought in court with p.j. or s.m.j.)You can’t argue that a judgment is invalid simply because it was based on error, e.g. relying on unconstitutional statute

FINALITY OF JUDGMENTThere must be nothing left for judge to do but enter judgmentWill a judgment determining liability be final for claim preclusion before damages have been adjudicated?What about dismissal of one of Ps claims, if the other claim is allowed to continue?Will the grant of preliminary injunctive relief bar an action for permanent injunctive relief for the same claim?Does an appeal destroy finality?

JUDGMENT ON THE MERITS

Disposition based on validity of Ps claim rather than technical procedural groundIs a judgment entered after a full trial on the merits?Summary judgment? 12(b)(6) dismissal? 12(b)(2) dismissal?Voluntary dismissal under FRCP 41(a)?A second voluntarily dismissal under FRCP 41(a)?Dismissal for failure of prosecution under FRCP 41(b)?

SAME CLAIM

Federal courts employ a “transactional” approach to determining whether the claim in the first suit is the same as the claim in the second suit.Describe this “transactional” approach (See Restatement (2d) of Judgments s. 24)NOTE IT BASICALLY MIRRORS THE JOINDER RULES

SAME PARTIES/PARTIES IN PRIVITY

What is the test for when a party is in privity with another party for the purposes of res judicata?

Gonzalez v. Banco Central Corp. (1st Cir. 1994)

What are the key facts?What is the procedural history?What is the issue on appeal?Did the Gonzalez plaintiffs win their appeal?

Gonzalez: Final/Valid Judgment on the Merits

Did the 1st Circuit find that there was a final judgment on the merits in the earlier Rodriguez suit?

Gonzalez: Same Claim

Did the 1st Circuit find that the claims asserted in the Rodriguez suit were the same as in the Gonzalez suit?Why or why not?

Gonzalez: Same Parties/Parties in Privity

Were the parties the same in the Rodriguez/Gonzalez suits? Why or why not?Did the 1st Circuit find that the parties in both suits were in PRIVITY? Why or why not?What are some examples cited by the 1st Circuit of when parties would be in privity?What is the doctrine of virtual representation? Why did the Gonzalez court find it did not apply?