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CIVIL PROCEDURE OUTLINE
BASIC STAGES OF A JURY TRIAL:
Jury Selection → Opening Statements → P’s Evidence → D’s Evidence → Closing Arguments → Jury Instructions
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Complaint (Rule 7(a)(1))
P Files Complaint → D Answers → Discovery → Summary Judgment → Trial → Post-Trial Motions; Appeal Sections of a Complaint (italicized → required) : Introduction Jurisdiction , Venue, and Parties Facts Claims for Relief (set forth in separate “counts”) Prayer for Relief Jury Demand ( Rule 38(b) ) Lead Counsel’s Signature Exhibits (if any) Rule 8(a) Requires: A short and plain statement of the grounds for the court’s subject matter jurisdiction A short and plain statement of the claim showing that the pleader is entitled to relief A demand for the relief sought, which may include different types of relief Jurisdiction: Subject Matter Jurisdiction – refers to the type of CLAIMS that the plaintiff is asserting and whether or not a federal court is ALLOWED to hear those claims. In a federal court, a plaintiff MUST allege subject matter jurisdiction. o Federal Question Jurisdiction ( 28 U.S.C. §1331 ) To qualify, the source of plaintiff’s claim for relief (the basis for her right to sue) must be either a federal statute or a provision of the U.S. Constitution Richard Clements v. City of Cleveland o Diversity Jurisdiction ( 28 U.S.C. §1332 ) §1332(a)(1): Diversity jurisdiction governs the assertion of STATE law claims in federal court. If the plaintiff is asserting a FEDERAL claim, she can always bring suit in federal court under §1331. To qualify, the plaintiff(s) and defendant(s) must be completely diverse o If, for example, one of the plaintiffs is from Ohio and one of the defendants is from Ohio, diversity jurisdiction is destroyed – so the case cannot be heard in federal court §1332(c)(1): A corporation is a citizen of any state under whose laws it has been incorporated and also of the state where it has its principal place of business. Thus, a corporation can be a “citizen” of more than one state for purposed of diversity jurisdiction.
In-Room Publications v. Holiday Inns Personal Jurisdiction o Limits the territorial reach of a court – it limits the power of a court to sit in judgment over a defendant who has no meaningful connection to the state where the court is located o In a federal court, a plaintiff does NOT NEED to allege personal jurisdiction (only D) o Grounds for Personal Jurisdiction: Individual defendant is served with process inside the forum state Consent (ex: signing a forum selection clause in a contract) Individual defendant is domiciled in the forum state: Milliken v. Meyer, 311 U.S. 457 (1940) SPECIFIC in personam jurisdiction based on MINIMUM CONTACTS with the forum state GENERAL in personam jurisdiction in the forum state if a company is incorporated or headquartered there o Constitutional requirement that comes from the Due Process Clauses of the 5th^ and 14th Amendments o Limits the territorial POWER of a JUDGE to exert control over a defendant o Has the same effect as venue BUT is concerned with restraining a judge’s territorial reach Venue: Restricts the plaintiff’s range of choices as to WHERE she may file suit, requiring that the courthouse she chooses must have some geographic connection to the events in the case or the whereabouts of the defendants The judicial district is the relevant geographical unit 28 U.S.C. §1391(b) focuses on two questions: o Where do the defendants reside? ( §1391(b)(1) ) o Where were the important events? ( §1391(b)(2) ) All we must know for the exam regarding districts → Federal Judicial Districts in Ohio (Northern District & Southern District) Statutory requirement Limits the plaintiff’s range of choices as to the geographic location of the courthouse where she may file suit Rules are meant to assure that every lawsuit is tried in a geographic location that bears some sensible relationship to the parties or to the claims they are asserting Parties: Rule 20(a)(1): Joinder of Parties o Permits multiple plaintiffs to join together in one lawsuit ( 20(a)(1) ) o Allows multiple defendants to be sued in one lawsuit ( 20(a)(2) ) Introduce each of the named parties Briefly explain their connection to the case/claim Facts (Rule 10(b)): Set forth in short, numbered paragraphs
o A preliminary injunction is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion. To prevail, the moving party must demonstrate (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable harm without injunctive relief, (3) that an injunction would not substantially harm other interested parties, and (4) that issuance of the injunction is in the public interest. ( Cobell v. Norton ) o Cannot be issued unless all parties are provided with notice, and it cannot be issued until the court has held a hearing on the motion “Hearing” implies evidence is being introduced (similar to a mini trial with witness and exhibits) o Time to file. Before complaint. If time is short, a request for preliminary injunction can be made before a complaint is filed, but the complaint must be filed before the court’s hearing on the preliminary injunction. After complaint – motion or show-cause order. A preliminary injunction made after the complaint is filed can be sought by a motion or an order to show cause. o Grounds. The application for a preliminary injunction should plead and prove the grounds for injunctive relief. o Bond. The application for a preliminary injunction should state that the plaintiff is willing to post a bond. o Relief. The application for a preliminary injunction should identify the relief sought. The relief sought must have a sufficient nexus to the request for relief in the complaint – that is, there must be a relationship between the injury claimed in the request for preliminary injunction and the conduct asserted in the complaint. Proceed on an expedited basis, however, don’t afford relief quite as quickly as a TRO o Evidentiary support. The application for a preliminary injunction must be accompanied by an affidavit or a verified complaint. The application is usually supported by affidavits, but it can be supported by other evidence. o The purpose of a preliminary injunction is to preserve the status quo pending a final determination of the merits. Permanent Injunction o The purpose of a permanent injunction is to prohibit or require future action after a final determination of the merits when a damages award is not the appropriate remedy. Temporary Restraining Order (TRO) (65(b)) o Sought ONLY in extreme emergencies where your client faces the threat of some IMMINENT injury from the opposing side Ex: Your client owns a building that is about to be demolished Ex: You represent a company that is facing a hostile takeover attempt o If a TRO is to be granted without notice to the opposing party, Rule 65(b)(1) imposes two requirements: The applicant must clearly demonstrate with specific facts in an affidavit or a verified complaint that she faces “immediate and irreparable injury.” ( 65(b)(1)(A) )
The applicant’s attorney must certify to the court in writing whatever efforts have been made to notify the opposing party, and the reasons why the order should be issued without any further efforts at notification. ( 65(b)(1)(B) ) Must make a good faith effort to notify opposing party o How long does a TRO remain in effect? If granted without notice, a TRO expires no later than 14 days after its issuance ( 65(b)(2) ) It can be renewed without the consent of the opposing party only once, for no more than an additional 14 days. ( 65(b)(2) ) By contrast, a preliminary injunction may remain in effect for the remainder of the litigation Who is bound by a court-issued TRO/injunction? Any limits? o Rule 65(d)(2) provides that it’s binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice. Complaint or motion. The application for a TRO can be filed with the plaintiff’s complaint or as a separate motion. Grounds. The application for a TRO should plead and prove the grounds for injunctive relief. Ex parte. o Notice not required. A TRO can be issued without written or oral notice to the adverse party or its attorney. FRCP 65(b)(1). If the adverse party receives notice of the TRO and participates in the hearing, the application for a TRO can be treated as an application for a preliminary injunction. o Allegations. An ex parte TRO can be issued only if (1) specified facts in an affidavit or verified complaint clearly show that the plaintiff will suffer immediate and irreparable injury, loss, or damage if the TRO is not granted before the defendant can be heard, and (2) the plaintiff’s attorney certifies in writing whether efforts were made to give notice and why notice should not be required. FRCP 65 (b)(1). Notice is not required when it would be impractical or impossible or when there are no less drastic means to protect the plaintiff’s interests. Request for preliminary injunction. The application for a TRO does not have to include a request for a preliminary injunction. However, if the need for injunctive relief extends beyond the time limit of the TRO, the application should request a preliminary injunction. Bond. The application for a TRO should state that the plaintiff is willing to post a bond. Relief. The application for a TRO should identify the relief sought. Evidentiary support. The application for a TRO must be accompanied by an affidavit or a verified complaint, FRCP 65(b)(1)(A). Affidavits must be based on the personal knowledge of the affiant. Is it a good idea to request both a TRO and a preliminary injunction? o Yes ; because the TRO will expire in just a few days, leaving your client without any injunctive protection o Ideally, you will get the court to replace the TRO with a preliminary injunction that will go on protecting your client as the lawsuit continues If you request both a TRO and a preliminary injunction, what is the sequence of events in which the judge rules on them? o At that point, Rule 65(b)(3) requires the court to hold a hearing on a motion for preliminary
P Files Complaint → D Answers → Discovery → Summary Judgment → Trial → Post-Trial Motions; Appeal Option #1. File a Rule 12(b) Motion to Dismiss: Pre-answer motion to dismiss Grounds for dismissal: o Lacks subject matter jurisdiction o Lack of personal jurisdiction o Improper venue o Insufficient process o Insufficient service of process o Failure to state a claim (demurrer) Rule 12(b)(6): Category 1 – lawsuit relies on theory that is not currently recognized under law of that jurisdiction Category 2 – the complaint fails to allege sufficient facts to support cognizable legal claim o Failure to join required party Option #2. Answer Complaint (Rule 12(c)): Two sections: o Paragraph-by-paragraph response to allegations in complaint ( Rule 8(b) ) o Affirmative defenses ( Rule 8(c) ) Assumption of risk, contributory negligence, discharge, duress, failure of consideration, fraud, illegality, license, release, res judicata, statute of frauds, statute of limitations, waiver, etc. Three choices: o Admit; Do not admit if you do not know On record as undisputed admission once you answer o Deny; o Lack of sufficient knowledge/information to form belief about truth of allegation ( Rule 8(b)(5) ) Default judgment – penalty for failing to reply to complaint with responsive pleading ( Rule 55 ) D’s Additional Options: Crossclaims ( Rule 13(g) ) o Suing co-defendant Counterclaim ( Rule 13(a) ) o Suing right back Impleader/Third-Party Practice ( Rule 14(a) ) o Third-party P suing D Options NOT covered in class: o Transfer of Venue
o Remove Action from State to Federal Court (28 U.S.C. §1441) Dispositive Motion Opportunities: After complaint 12(b) motion to dismiss; After answer 12(c) motion for judgment on proceedings; After discovery 56 motion for summary judgment; During trial 50(a) motion for directed verdict; After trial 50(b) judgment notwithstanding the verdict [JNOV] Timetable: Pleadings/Motions/Conferences: P files the complaint (day 1) P serves D with complaint (immediately after day 1) D answers or files a Rule 12(b) Motion to Dismiss (within 60 days after step 2) Rule 26(f) conference (at least 21 days before the 16(b) conference) Rule 16(b) conference (REQUIRED within 90 days after step 2 OR within 60 days after step 3 – whichever is earlier)
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The Discovery Process ( Rule 26 et seq.)
P Files Complaint → D Answers → Discovery → Summary Judgment → Trial → Post-Trial Motions; Appeal The Lawyer’s Pretrial Discovery Meeting ( Rule 26(f) ) : REQUIRED private, informal meeting with opposing counsel At the 26(f) meeting, the lawyers are required to discuss: o Resolving or settlings the case o Rule 26(a)(1) initial disclosures o Preserving discoverable information NEVER destroy evidence even when you have a client telling you to do so Raises ethical issues Sanctions are SEVERE (other side automatically wins the case) o Developing a discovery plan Initial Pretrial Conference; Scheduling Order ( Rule 16(b) ) : Judge may have a worksheet to use while sitting down with adversary at this meeting (usually on the court’s webpage) At the VERY least, the 16(b) Scheduling Order must impose time limits for: o Joining other parties o Amending the pleadings o Filing motions Summary judgment motion (deadline to file: ~ 30 days after discovery) o Completing discovery Will result in the creating of a “discovery cut-off date” Try to get the most generous date that you can
Interrogatories ( Rule 33 ) o Written questions meant to be answered under oath by the opposing party o BEST used for relatively arcane information that a witness would not know off the top of their head o Way of discovery facts we do not know Requests for Admissions ( Rule 36 ) o Used to get the other side to stipulate to the truth of certain facts that we already know o Method of forcing the other side to acknowledge that a fact is true o Under-utilized by lawyers despite many good things about this method!! o Becomes an undisputed fact (very valuable) Document Requests ( Rule 34 ) o Rule 34 Title: Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes Examples: email, memorandum o Documents do NOT lie o Can use a document to ask questions and get information out of a witness o You cannot get a second chance to depose a witness, therefore you MUST make it count!! o Objections to Producing Documents: The request seeks documents that are protected by the attorney/client or some other privilege The request seeks documents that constitute attorney work product The request is overly broad or unduly vague The request is burdensome and oppressive The request is not “proportional to the needs of the case,” per Rule 26(b)(1) The request seeks non-discoverable expert information, beyond that afforded by Rule 26(b)(4) Depositions ( Rule 30 ) o Sworn testimony o Witness is required to answer o WHY? To discover relevant facts in the case Very effective way of getting to the bottom of a case To gather testimony to support your motion of summary judgment To prepare for cross-examining this witness at trial You NEVER ask a leading question Rule 32(a)(2): Permits you to use the witness’s deposition testimony at trial for purposes of impeachment The Subpoena ( Rule 45 ) Get from the court’s website (the court where your case is pending) Subpoena duces tecum – a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial Important Amendments to Rule 45 (Dec. 2013):
o All subpoenas are not to be issues from the district court where the action is pending ( Rule 45(a)(2) ) o The amendments eliminate the old geographic limits on service of subpoenas; now, a subpoena may be served “at any place within the US.” ( Rule 45(b)(2) ) o But the amendments protect witnesses who receive a subpoena by restricting how far they may be forced to travel. Under Rule 45(c)(1)(A) , a subpoena may only compel a person to attend a hearing, trial, or deposition “within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Limitations on the Reach of Discovery: Attorney/Client Privilege ( Rule 26(b)(3) ): o Goes back to Ancient Roman Law o Free the client to be honest, transparent, and forthcoming o Applies only if: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made: Is a member of the bar of the court, or his subordinate; and In connection with this communication is acting as a lawyer; (3) the communication related to a fact of which the attorney was informed By his client Without the presence of strangers For the purpose of securing primarily either o An opinion on law; or o Legal services; or o Assistance in some legal proceeding; and not o For the purpose of committing a crime or tort; and (4) the privilege has been Claimed and Not waived by the client o The purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients, thus promoting broader public interest in the observance of law and the administration of justice. The privilege rests on the need for the attorney to know everything that relates to the client’s reasons for seeking representation. Thus, the privilege exists to promote full disclosure by the client and to foster a relationship of trust. o What privilege protects. The attorney-client privilege protects from discovery certain communications among the attorney, the client, and their representatives. Attorney-client communication. The attorney-client privilege generally protects communications between only the attorney and the client. But in certain circumstances, the privilege may extend to communications involving the attorney’s and client’s representatives, including secretaries, paralegals, accountants, and investigators. Confidential communication. The attorney-client privilege protects only communications made in confidence for the purpose of obtaining legal advice from the attorney. A communication is confidential only if it is not intended to be
o Opinion Work Product Consists of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party. ( Rule 26(b)(3)(B) ). Attorney notes. Attorney notes are the prime example of opinion work product. Even purely factual attorney notes may reflect an opinion since an attorney reveals her view of the case in deciding what to write and what to omit. Documents. Documents reflecting strategy discussions and evaluation of cases are opinion work product. Compilations. Some compilations of documents may be protected as opinion work product because even acknowledging them will disclose the attorney’s mental impressions and thought processes. Litigation file. The organization of the file, as well as the decision about what to include in it, is opinion work product because it necessarily reveals the attorney’s thought processes about the case. Enjoys almost absolute immunity and can be discovered only in very rare and extraordinary circumstances, such as when the material demonstrates that an attorney engaged in illegal conduct or fraud Rule 30(c)(2) : when defending a deposition, there are only 3 situations in which you can instruct your witness not to answer a question: To preserve a privilege o Instruct client NOT to answer if the question invades attorney-client privilege To enforce a limitation ordered by the court To suspend the deposition and seek a court order under Rule 30(d)(3) protecting your witness from bad-faith or unreasonable annoying, embarrassing, or oppressive questioning Objections to the FORM of a Question or Answer ( Rule 32(d)(3)(B) ): Leading on Direct Examination o Leading is allowed when questioning an adverse party or witness Ambiguous/Vague o An ambiguous question is one that is susceptible to at least two interpretations or is so vague or un-intelligible as to make it likely that the deponent will be confused, or his resulting testimony will create an unclear record. The objection can be cured by rephrasing the question or by demonstrating that the witness actually understands the question. Argumentative o An argumentative question is one that is asked not for the purpose of obtaining information from the witness but rather, in the guise of a question, to make argument regarding the facts of the case (i.e., to put a partisan spin on the facts) hoping for witness agreement. o Will often seek to get witness agreement to inferences drawn from the facts. They are typically phrased either as yes-or-no questions or leading questions Asked and Answered
o A question may be object to as “asked and answered” when it calls for repetition of testimony from a deponent who has already provided an answer to the same question from deposing counsel. Assuming Facts NOT in Evidence o A question is objectionable if it assumes, in the asking, facts that have not already been proved through the testimony of the deponent or by other competent evidence. The objection is cured by asking the witness about the fact that was assumed in the object-to question and verifying that the witness knows the fact. Compound Questions o One that asks for two or more items of info at the same time, making likely that the answer will produce a confusing record of the deponent’s testimony. o This objection can be cured by breaking the component parts of the question into single fact inquiries Misquoting the Witness o A question is objectionable when it includes a factual predicate purportedly based on, but actually misstating previous testimony by the deponent. o When this objection is asserted, it is often beneficial to ask the court reporter to read back the disputed testimony to clarify what the witness actually said. Narratives (Questions and Responses) o An objection can be made to a question that is so overly broad that it forced the deponent to speak at great length in an effort to answer it – and creates a danger that the deponents will fail to include all of the info within the broad scope of the question. Non-Responsive Answers o An answer by a deponent that either (1) exceeds the scope of the question or (2) fails to respond to the question is subject to objection and a motion to strike the answer. o The objection belongs to the questioning lawyer alone o If the answer is completely unresponsive, questioning counsel should insist on receiving a direct answer to the question posed Judicial Supervision of Discovery ( Rule 37 ): Judge has the power to compel the lawyers in the case to adhere to the rules and to obey legitimate requests for discovery Motion to Compel Discovery o When another party fails to comply with a discovery request, the requesting party may file a motion to compel o A motion to compel asks the court to order the other party to provide the discovery Protective Order o The other avenue for discovery disputes to get to court o Comes from the responding party and asks the court to order that certain discovery not be had or to order some other constraint on discovery o Rule 26(c) Discovery Sanctions Expert Discovery ( Rule 26(a)(2) ):
Found on the judge’s webpage (criminal & civil jury trial orders) Trial Brief: Governed by “jury trial orders” that each judge promulgates for the administration of his/her docket Purpose: Allow the judge to wrap his/her head around the case that is going to be tried In federal court, a trial brief typically must be filed 10-14 days before the start of trial Trial Brief contains: o Statement of facts o The controlling law o Witness list o Exhibit list o Discussion of evidentiary issues likely to arise at trial o Proposed voir dire questions o Proposed jury instructions Phases of a Jury Trial: P’s case in chief → D’s case in chief → P’s rebuttal → D’s rebuttal → closing arguments → jury instructions → jury deliberations and verdict Proposed Voir Dire Questions (Rule 47(a)): Preliminary examination of a prospective juror by a judge or counsel Critically important step!! Refrain from yes/no questions Proposed Jury Instructions (Rule 51): Matter of pure law Must accurately state the law within the instruction Erroneous jury instructions are common basis for appeals De novo Standard of Review – the court of appeals is NOT deferential at all to what the trial court did o Looking at the case with fresh eyes Proposed Special Verdict Forms and Jury Interrogatories (Rule 49): You can draft a special verdict form, which requires the jury to identify their factual findings o Specific Yes/No questions about the case Attach proposed verdict form to pre-trial motion to ensure no objection by opposing side More likely to be utilized by defense lawyers (especially in complex civil cases) o Beneficial to make sure that the jury Without Rule 49, jury will come back with general verdict (lacks detail) Difference Between Rule 49(a) and Rule 49(b): Both rules require the jury to make express findings of fact
49(b) also requires the jury to use a general verdict, while 49(a) does NOT Rule 49(b) Jury Mistake Scenarios: Scenario #1 (Rule 49(b)(3)): the factual findings are consistent with each other, but one or more of them conflicts with the general verdict. o Answers YES to all questions in favor of P but returns a verdict for D o The judge may: Enter judgment consistent with the interrogatory answers, even if the jury’s verdict went the other way; or Send the jury back for further consideration of its answers and verdict; or Order a new trial Scenario #2 (Rule 49(b)(4)): the factual findings are inconsistent with each other, and one or more of them conflicts with the general verdict. o Answers YES and NO within the form, which is inconsistent to reach a certain verdict o The judge my NOT enter judgment. She must choose between two alternatives: Send the jury back for further consideration of its answers and verdict; or Order a new trial The Motion in Limine: Pretrial motion that asks the judge to rule BEFORE trial that certain evidence will be excluded at trial Typically filed 10-14 days before trial WRITTEN motion as opposed to oral Can be used to keep out documents, expert testimony (specific topics or altogether) Don’t need to focus heavily on evidence (you will learn this in depth when you take the Evidence course) Motions to be Made During and Shortly After Trial: Rule 50(a): The Motion for Judgment as a Matter of Law (formally called “Motion for a Directed Verdict”) o Stand up in the middle of the trial and ask the judge to rule that you should win right now and that it is not necessary to send the jury back for deliberations because your opponent has failed to satisfy their burden o Filed after P’s case in chief, D’s case in chief, and/or both sides’ rebuttals Can only move after adversary has presented/gone Rule 50(b): Motion for Judgment as a Matter of Law (formerly called “Motion for Judgment Notwithstanding the Verdict”) o Filed after you lost, and the trial is over o Effort to get the judge to set aside the jury’s verdict and replace with a verdict for yourself o CANNOT file if you have not filed a 50(a) motion Rule 50(b) & Rule 59: Motion for a New Trial o Filed after you have lost, and the trial is over
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