1 / 16

WHERE WE ARE & WHAT WE’RE DOING

WHERE WE ARE & WHAT WE’RE DOING. Pleading Pre-trial Trial & Post-trial Appeal Waiver Finality. APPEAL Waiver. Waiver “Be fair to your trial judge” Avoid unnecessary appeals Practical problems Juggling multiple issues Clinic case. APPEAL Finality. The Basic Rule 28 U.S. C. § 1291

yoshino
Download Presentation

WHERE WE ARE & WHAT WE’RE DOING

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. WHERE WE ARE & WHAT WE’RE DOING • Pleading • Pre-trial • Trial & Post-trial • Appeal • Waiver • Finality

  2. APPEALWaiver • Waiver • “Be fair to your trial judge” • Avoid unnecessary appeals • Practical problems • Juggling multiple issues • Clinic case

  3. APPEALFinality • The Basic Rule • 28 U.S. C. § 1291 • Appeal lies from “all final decisions”

  4. APPEALFinality • The Practical Questions • What’s a “final decision”? • Bureaucratic requirements • What’s the paperwork? • How do parties know when judgment is entered?

  5. APPEALFinality • What’s a final decision? • Ends the lawsuit • On merits • Judgment • after bench trial • on verdict • JML rejecting verdict • Procedurally • Wrong court • 12(b)(1),(2),(3) - no SMJ, PJ, venue • Doesn’t state claim • 12(b)(6)

  6. APPEALFinality • What’s a final decision? • A Complication: FR 54(b)

  7. APPEALFinality • What’s a final decision? • A Complication: FR 54(b) • More than 1 claim for relief • Court may direct final judgment on < all • Express determination • No just reason for delay • Express direction for entry of judgment

  8. APPEALFinality • Liberty Mut. Ins. Co. v. Wetzel, p. 764 • Who raised issue of appellate jurisdiction? • Cf. Grant of declaratory relief • Why consider alt. bases of jurisdiction?

  9. APPEALFinality • The Policy Concerns • Judicial economy • “avoid piecemeal appeals • versus • Fairness • “Correct” decisions on merits

  10. APPEALTiming of the Appeal • When is “judgment” entered? • Separate written document • Waivable • Notice to parties • Example • Verdict against state • DD abuse case

  11. APPEALExceptions to Final Jdgmt Rule Exceptions to Final Judgment Rule Practical Finality (Cohen rule) 28 U.S.C. §1292(a) Injunctions 28 U.S.C. §1292(b) Interlocutory Appeals 28 U.S.C. §1651 Writs Fed:Mandamus State: Prohibition

  12. APPEALExceptions to Final Jdgmt Rule • “Practical finality” • Cohen - “collateral order doctrine” • p. 775 • Conclusively determine disputed question • Resolve important issue • separate fr. merits • Effectively unreviewable • On appeal from final judgment

  13. APPEALExceptions to Final Jdgmt Rule • Lauro Lines v. Chasser, p. 773 • Def./App’s “theory of the case” • Forum selection clause = • “right not to be sued outside Italy” • Collateral order precedents allow appeal • Van Cauwenberghe v. Biard, p. 776 • Immune fr. service – in U.S. because extradited • Mitchell v. Forsyth, p.775 & 778, note 3 • Qualified official immunity for AG

  14. APPEALExceptions to Final Jdgmt Rule • Lauro Lines v. Chasser, p. 773 • Cf. Carnival Cruise Lines, p. 169 • D.Ct. granted def’s motion for sj • Enforced forum clause • Why appealable?

  15. APPEALExceptions to Final Jdgmt Rule • 28 U.S.C. §1292(b) • Interlocutory Appeals • Legislative solution to Cohen rule

  16. APPEALExceptions to Final Jdgmt Rule • 28 U.S.C. §1651 • Writ of mandamus • Cf. state court practice • Writ of mandamus – Asahi (CA) • Writ of prohibition – WWVW (OK)

More Related