Agenda for 14th Class

1. Agenda for 14th Class • Name plates out • JMOL • New Trial

2. Assignment for Next Class: Appeal Skim FRCP 61; 28 USC 1291, 1292, 2111 Skim Yeazell 674-703 (skip cases) Read carefully Yeazell 703-713 Questions to think about Go back through all the cases read so far in Civil Procedure If the case was decided by an appellate court, what standard of review did the court use and why? If the case is not explicit about the standard of review, what standard should the court have used? If the case was decided by a trial court, what standard of review should an appellate court use if the issue(s) resolved in the case were appealed? Note that if more than one issue is appealed, the appellate court may apply different standards of review to each issue. Briefly summarize Anderson and Harnden In your summary of Harnden, include an answer to Yeazell p. 712 Qs 1f, 2 How could you argue that the district court judge’s error in Harnden was not harmless? In doing so, consider why it is important that an expert report be submitted in the form of an “affidavit or sworn statement.” Questions on next slide 2

3. Assignment for Next Class: Appeal It is relatively easy for a district court’s decision to grant JMOL to be overturned on appeal (because the standard of review is de novo) but relatively hard for a district court’s decision to grant new trial to be overturned on appeal (because that decision is reviewed under the more deferential “abuse of discretion” standard” and may not be reviewable at all until after the second (or third or fourth) trial). Does this make sense? Why or why not? Assuming that the jury returned a verdict for the plaintiff and that the defendant moved for JMOL and new trial, who can appeal in each of the following 4 situations and when. Judge grants JMOL and conditional new trial Judge grants JMOL and denies conditional new trial Judge denies JMOL but grants new trial Judge denies JMOL and denies new trial 3

4. Summary Judgment Timing In general, summary judgment motion is made after discovery is complete, which is usually a few months before trial Party can move for summary judgment anytime between filing of complaint and trial Rule 12(d) says that pre-answer motion which includes matters outside the pleading should be treated as SJ motion Nevertheless, ordinarily, SJ motion filed before completion of discovery will not be considered. See Rule 56(d)(1) Early SJ is only appropriate when party has conclusive evidence on decisive issue Defendant in promissory note case has canceled check Deposition indicates that condition precedent not satisfied Note also that court can grant partial summary judgment SJ on one issue, even if not decisive Plaintiff could get partial SJ on duty and proximate cause, leaving negligence for trial 4

5. Judgment as Matter of Law (JMOL) Like SJ, usually defendant’s motion Defendant usually moves for motion at trial, after plaintiff has finished presenting its evidence or after presentation of all evidence This used to be called “Directed Verdict” Judge almost always defers decision on motion until after jury delivers verdict Otherwise, if reversed on appeal, will need to completely redo trial Also, if jury decides for defendant, then judge doesn’t need to rule at all Nevertheless, for constitutional reasons, defendant must make motion before jury decides 7th Amendment forbids overturning (“reexamining”) jury verdict But permissible not to send case in first place to jury If defendant makes motion before verdict and judge defers decision until after verdict comes in, treated as if judge had never sent case to jury. 5

6. Judgment as Matter of Law (JMOL) Defendant renews motion after jury verdict comes in Used to be called jnov (judgment non obstante veredicto / judgment not withstanding the verdict) Judge grants motion if no rational juror could decide in favor of plaintiff Like SJ, judge is not supposed to evaluate witness credibility 6

7. JMOL Questions • Briefly summarize Penn • Your summary should include an answer to Yeazell, p. 652 Q 1a • Yeazell p. 652ff Q1b-c, • In Penn, what is the difference between a judge making a credibility determination that Bainbridge was not a credible witness (which the judge is not allowed to do) and a judge deciding that Bainbridge’s testimony was “suspicious, insubstantial, and insufficient…simply incredible” (p. 652) • In Penn, what arguments could plaintiff’s lawyer have made to have had a better chance of defeating judgment as a matter of law? • In Penn, if you think the Supreme Court erred in affirming the District Court’s granting of JMOL, do you think new trial would have been appropriate?

8. New Trial • Two reasons • Error in trial • Improper jury instructions, improper exclusion of evidence, improper argument by counsel etc. • Error must not be “harmless” • Verdict contrary to the great weight of the evidence • Judge can evaluate credibility of witnesses

9. New Trial Questions • Briefly summarize Lind • Your summary should include an answer to Yeazell p. 662 Qs 1-3 • Is it easier or harder for a party to get JMOL or new trial? Does this make sense? Why or why not?

10. Standards of Review • De novo (non deferential) • Court of appeals examines issue afresh and reverses if it disagrees with the trial court, even if it thinks that issue was close call and trial court decision had strong arguments to support it • For legal issues • 12(b)(6), SJ, JMOL • Purely legal issues in discovery • Deferential standards • Court of appeals only reverses if it thinks that the trial court made a serious error • Clearly erroneous standard • For trial court determinations of fact • Bench trial • Purely factual aspects of discovery

11. Standards of Review II • Deferential standards (continued) • Abuse of discretion standard • For trial court discretionary decisions • Whether to sanction, if sanction not mandatory • Amount/kind of sanctions • Some evidentiary issues • New trial