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1. Privilege and Trial Preparation Material Hickman v. Taylor (1947) p. - Facts o Public hearing after a tug boat accident resulted in counsel for Π, Fortenbaugh, filing interrogatories asking for all detailed conversations between counsel for respondent and survivors from the accident. § F privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation which the survivors then signed. ú This is different than just a memo of the conversation: no lawyer impressions, simply a written statement § F also interviewed other people he believed to have information – some cases he made memoranda of what he told them, others he only made mental note o Trial: § DC – not privileged § CoA – privileged (thus not discoverable) § On Appeal: Affirmed. - Issue - Holding o Rule: Where relevant and non-privileged facts remain hidden in an attorney’s file, and where production of those facts is essential to the preparation of ones case, discovery may properly be had. - Analysis o “the deposition-discovery rules are to be accorded broad and liberal treatment. no longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponents case. mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. to that end, either pay ma compel the other to disgorge whatever facts he has in his possession.” § Court: this is limited when it would undermine the adversary system o they want copies of written statements – is interrogatory correct tool? no – Rule 34 § however, may need to use a subpoena because its created by the lawyer, not client (?) o Why was this (a discovery order) appealable? Because in order sanctions, basically holding in contempt and that is immediately appealable. o what is the basis for objection? § ACP – no, only applies to communication between the attorneys and the client ú had the tugboat owners been a corporation, and the survivors still been employees, might have been protected under ACP under Upjohn
§ WPD: these materials should not be produced because they are work product. ú signed written statements ú memorandum with attorneys thoughts – core work product § why? adversary system – best way to get out the most evidence and best arguments 04/02/ FRCP 26(b)(3): “Codification” of the WPD
- covers party and representative (including other party's attorney, consultant, surety, indemnitor, insurer, or agent)
- what is covered? o written statements are treated differently as they do not reflect the thoughts of counsel
- But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Problems p.
- a. b.
- a. you can find out whether or not he gave a video tape or transcription What about surveillance videos?
- clearly work product – made in anticipation of litigation o purpose is for impeachment – loses value if the other side knows that its coming
- can the WP protection be overcome? o argument that the person being surveyed was there – they should know 04/03/ 2. Expert Information Expert: testifying to an opinion based on specialized knowledge
- they are allowed to answer hypotheticals or other inferences based on this specialized knowledge
- therefore, they must be qualified by the Court before being allowed to take the stand as an expert o must be a flexible inquiry on the court that reliable foundation and relevant o Court looks at 4 factors in playing gatekeeper role [see website] § has the theory or technique been tested or subject to peer review § is the error rate known § has the theory or technique gained acceptance Rule 26
§ Δs objection is under 26(b)(4)(B) – requires exceptional circumstances § Court determines that because it was their boat, and Δ should have known that they would be held liable for the missing boxes, the Δ should have had their own surveyor come out § only required to turn in the documents that were given to him – nothing that he created and nothing that was in his head ú not required to disclose the facts that he observed, just those that the Π gave him CHAPTER 8: RESOLUTION WITHOUT TRIAL 04/07/ A. The Pressure to Choose Adjucation or an Alternative FL 1-700: mandates some sort of settlement/negotiation attempt by the parties
1. Default and Default Judgments Rule 55: Default; Default Judgment (a) Entering a Default : When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default. (b) Entering a Default Judgment. (1) By the Clerk: if the plaintiff's claim is for a sum certain or a sum that can be made certain (2) By the Court: In all other cases, the party must apply to the court for a default judgment. § court may conduct hearings to, among other things, compute the amount of damages (c) Setting Aside a Default or a Default Judgment: The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b). (d) Judgment Against the United States: A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court. Rule 60: Relief from Judgment or Order (b): direct attack on the judgment (c) Peralta v. Heights Medical Center (1988) p. - Facts
o Peralta had an employee who got injured, went to the hospital, and was supposed to pay for the employee’s injuries. o Peralta was served (outside the time limit) but chose not to show up § TC: default judgment entered ú attached the property § On Appeal: reversed – invalid (thus null) service under Texas law
- Issue:
- Holding
- Analysis o Π claimed that would have won on the merits had he had notice, thus should not reverse o Court: “where a person has been deprived of property in a manner contrary to the most basic tenants of due process, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits. § why? usually, when the Court attaches and sells property, do not get full value § had he gone to trial and judgment were entered against him, could have come up with money another way or sold the property himself. 2. Failure to Prosecute: Involuntary Dismissal Rule 41(b) Involuntary Dismissal; Effect: If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits. 3. Voluntary Dismissal Rule 41(a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2 and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
o Catrett filed suit for breach of warranty and strict liability – alleges husband’s death resulted from his exposure to products containing asbestos manufactured or distributed by 15 named Δs o 2 Δs filed motions challenging personal jurisdiction, while the other 13 filed motions for SJ. § Celotex said Caltrett failed to provide evidence that the product was proximate cause. § Celotex then produced 3 documents which claimed a material issue of fact – was a letter from a former worker for petitioner, as well as a letter from insurance company to petitioner. o Ruling on SJ: § TC: granted SJ - claim not proven within the SOL § CoA: reversed – petitioner introduced no affidavits or otherwise to support its motion. § On Appeal: reversed and remanded
- Analysis o CoA: wanted Δ to produce affirmative evidence that contradicted Πs statements o SC reverses: that standard is wrong because it fails to account for the fact that the burden of production on the Π § Rule: if Π has burden of production; Δ can win on SJ by simply pointing out the gap in Πs proof § See Rule 56(b): may move with or without supporting affidavits Houchens (man disappeared in Thailand)
- Π was required to prove (a) that he died and (b) accidentally
- Δ moved for SJ – Π had not put forth enough evidence to show that he had died accidentally Bias v. Advantage International, Inc. (1990) p.
- Facts o Bias’ parents, as executor of estate, brought suit against Adidas Shoe Company, Lloyds Insurance Underwriters, and Advantage International, a sports and entertainment agents' firm. o The suit claimed that Advantage International (by and through their agent - employee) had failed in their duty to their client (Bias) to obtain a life insurance policy (also of at least $1 million in value) as the parents asserted that Bias had instructed his agent to do. o Advantage International moved for summary judgment on the ground that because of Bias’ cocaine use, would not have been able to obtain a $1 million dollar policy had they tried § DC: granted motion § On Appeal: affirmed.
- Analysis o Δ: not insurable.
§ unclear whether the insurability is part of Πs or Δs case § assuming that affirmative defense, Δ carries burden – once Δ produced evidence to show that he was not insurable, the court said the burden shifted to Π o Here, the witnesses had no stake in the case, and the Πs never deposed, so the court deemed uncontroverted evidence, thus leading to SJ § this is a very unusual case CHAPTER 9: IDENTIFYING THE TRIER 04/09/ A. Judging Judges: Bias and Recusal B. Judge or Jury: The Right to a Civil Jury Trial
1. Historical Reconstruction and the Seventh Amendment 7 th^ Amendment: [only applicable to federal government – never incorporated into the Due Process clause of the 14th^ Amdt] - in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved - and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Right: - legal remedy: generally, right to a jury trial - equitable remedy: generally no right to a jury trial Examples: - Breach o specific performance – equitable, no right to jury trial o damages – legal, no right to a jury trial - Nuisance o injunction – equitable, no right to a jury trial o damages – legal, right to a jury trial - Stolen Chattel o sue for value – jury (trover – the right to damages) o sue for return (CL: replevin – legal): still have a right to a jury trial - Wrongful Possession of Land o ejection – legal remedy (though specific form of relief); jury trial o damages associated – mostly legal, except mesne profits (the profits they made) is equitable remedy Main Problems Today With Right to a Jury Trial (1) New Rights of Action
CHAPTER 10: TRIAL
Rule 50: Motion for Judgment as a Matter of Law (a) Judgment as a Matter of Law what used to be directed verdict – takes away from the jury o to get a judgment against a matter of law against the Π - only need to show that there is an element of case where jury could not find for Π o to get a judgment as a matter of law against Δ - have to show that jury could not find in Δs favor on any of their claims o 2 Key Factors: § party must have been fully heard ( b) Renewing the Motion After Trial: Equivalent to JNOV o must have made a motion under 50(a) that was denied to raise one post trial Rule 52(c): Judgment on Partial Findings (= Motion for Judgment as a Matter of Law for Bench Trials) States of the Evidence Giving Rise:
- Is there no evidence from which the jury could infer a fact essential to the non- moving party’s case
- Evidence is so overwhelmingly weak that the court should not permit a jury to find the fact the evidence is being offered to prove
- There is no real dispute on the facts; issue is applying law to the facts and thus why should it go to the jury A. The Limits of Rational Inference Reid v. San Pedro, Los Angeles & Salt Lake Railroad (1911) p.
- Facts o cow got onto train tracks and hit – unable to determine if (a) gate left open or (b) broken fence
- Holding o Rule: if the evidence is such that there are equally plausible inference, the party who bears the burden of persuasion on that issue should lose on a motion for judgment as a matter of law § what the court is saying that the party has put forth no evidence and thus has failed their burden of production o Moving party does not need their own evidence, simply needs to point out of lack of evidence in the other party’s case ( see Celotex )
- Today: would not be a case of no evidence – would get an accident reconstructionist B. Procedural Control of Rational Proof 1. Juries, Democracy, and Rationality
**_2. Adversarial Responsibility for Proof
- Burdens_** a. Burden of Persuasion b. Burden of Production 4. Controlling Juries Before the Verdict a. Judgment as a Matter of Law (Directed Verdict) Pennsylvania Railroad v. Chamberlain (1933) p.
- Facts o There are some train cars. Then the dead guy, then more train cars. He gets squashed between some of the cars. What is the railroad able to offer as evidence on the issue of what happened in the accident? o Employees in the group of cars that crashed into him indicated that there was no collision at all. o But there is another witness who gives some evidence of a collision. § But the Court finds that this witness does not satisfy the plaintiff’s burden of production. § In theory, under the modern Rules, the railroad could have moved for a directed verdict at that point, and it would have been valid.
- Analysis: o typically, where you have conflicting testimony, as in here, the jury will resolve it § jury is usually, except in rare circumstances, allowed to evaluate and determine credibility
- WHY DOES THE SC SAY THAT THIS IS NOT A CONFLICTING EVIDENCE CASE? o he did not hear the crash in a directional sense, it could have been anywhere in the yard o the witness was not an angle where he would be able to discern § when he said the cars were moving together, it would have been impossible § therefore, they say witness is testifying to something that they could not possibly know ú if simply unlikely, not enough – the court must conclude that it is impossible [Example of extremely evidence of an issue essential to that party’s case] p.599: Railroad Co. v. Stout
Lind v. Schenley Industries (1960)
- Facts o Plaintiff was a sales manager of corporation and claimed that corporation had promised him that he would receive 1% of commission on all sales made in his office (implausible assertion); witnesses willing to testify that the promise was made to manager; defendant testified against it; jury nevertheless made verdict for plaintiff o Trial court granted judgment notwithstanding the verdict and then conditionally granted a new trial [FRCP 50(c)] for erroneously admitting evidence
- Standard for Trial Court in considering jury verdicts: o Should grant the new trial on the grounds that the verdict is against the weight of evidence, but only if it is SERIOUSLY erroneous o Middle Ground: Should grant judgment as a matter of law if trial court thinks the jury has completely misunderstood the case and there is absolutely no evidence to justify the verdict for the plaintiff o Should leave the verdict if it is just erroneous then he cannot grant a new trial (trial court should not substitute its view of the evidence for that of the jury)
- Ex: if verdict winner after the first trial now loses in the second trial (if that is what you wanted to happen you would just award JNOV); cannot keep granting new trial until you get the verdict that you want (Page confused with need for new trial as a remedy)
- Where no evidence to support evidence, then judgment as a matter of law is appropriate; or no question about evidence and it was only about the manner of negligence and jury does not need to decide that issue (is this negligence or not); that leaves situations of conflicting evidence where there is a lot of evidence on one side and only a little on the other (the court here says that that is the situation where you should be hesitant to grant a new trial because that is what the jury’s job is) o When no confusing and its asking whether to believe defendant or not then jury should decide o When it is appropriate to grant new trial is when the jury is apparently confused from the evidence being completely complicated When you grant a new trial it is not immediately appealable: not a final order; simply says going back to new trial and then once there is a final judgment in the case and then you can appeal it
- If plaintiff wins first trial and defendant wins new trial; goes back and there is an error free new trial and the defendant wins; the plaintiff can go back and appeal the error in granting the new trial
- FRCP 50(c): where there is both a motion for JNOV and new trial, then the court can grant the judgment not withstanding the verdict and then conditionally grant the motion for new trial o Do this in case you are wrong in granting the JNOV, then the court decide whether it is necessary to grant the new trial (ruling on one does not affect the finality of the ruling for motion of a new trial; can all go up together)
Confusion with FRCP 50(c) & (e) Four Possibilities (structure of these on various possibilities is getting at trying to allow each side the verdict winner and loser to argue for its second best position):
- Four Possibilities o JNOV and new trial; court can grant both (new trial conditionally) o Could deny both JNOW and new trial § Case is immediately appealable and not a problem o Could deny JNOV and grant new trial o Could grant JNOV and conditionally deny the new trial
- Defendant wants JNOV first, New trial Second, and the last thing it wants is the Verdict to stand
- Plaintiff wants Verdict first, New trial Second, JNOV last
- On appeal of however the court resolves this motion, each side will get to argue for its first best position and conditionally for the second best Remittitur: defendant moves for the new trial and the court doesn’t grant it but says to the plaintiff that the defendant is entitled to a new trial because the plaintiff’s verdict is excessive and makes proposition to reduce the amount of the verdict and if it is accepted, then a new trial will not be granted and a portion of the verdict will thereby be remitted and there will be avoidance of new trial
- Reason why you don’t get settlement is because one side is unduly optimistic (thinks they are going to do a lot better than is reasonable) in that situation a court may save the cost of the new trial by granting Remittitur
- Problem that it intrudes on juries function and defendant’s right to a new trial (defendant gets not say)
- Available because of efficiency
- Permitted in Federal System o Constitutional and doesn’t intrude on function of jury (chopping off illegal party and going down to what is reasonable) Additur: when the verdict comes back too low in damages according to the court; plaintiff is entitled to new trial and then the court gives the defendant the option of going to a new trial or increase verdict amount
- Not permitted in Federal System o Adding to jury’s decision (adding to nonethingness area, which is unconstitutional intrusion on the jury’s function)
