Civil Procedure II: Schwarzschild Outline 4

Civil Procedure II


Master Notes

Joinder of multiple claims and parties within one lawsuit. 2

Rule 18(a): 2

Tenet case on p. 580. 2

Rule 13  Counterclaim and Crossclaim.. 3

Heyward-Robinson: 4

Cross-claims—do we have compulsory cross-claims?. 5


Harrison Case: 5

Lasa Per L’Industria Del Marmo Societa Per Azioni v. Alexander 6

Permissive Joinder Under FRCP 20. 6

M.K. v. Tenet 6

Tanbro case: Wholesale fabric dispute. 6

Rule 19(a) and Rule 19(b): 7

Provident Tradesman Bank & Trust Co. v. Patterson: 7

Impleader: 8

Too Inc. 8


State Farm Fire & Cas. Co. v. Tashire. 9

Intervention: 10


RULE 26: 11

Sheila Roberts Ford Case: 12

Marrese v. American Academy of Othopaedic Surgeons. 13

Seattle Times Co. v. Rhinehart 13

Cummings v. General Motors Corp. 13

The Mechanics of Discovery: 13

Depositions: 13

Physical and Mental examinations. 14

Physical and Mental Examination: 15

Schlagenhauf: 15

Request to admit?. 15

Hickman v. Taylor: 15

Rule 26(b)(3)—Court will protect, mental conclusions, theories, etc. (see rules). 16

UpJohn Co. v. United States. 16

Rule 16: Pretrial Conferences; Scheduling; Management 16

Velez case??. 16


Rule 23- 17

23(b)(1) is mandatory. 17

23(b)(2) non money. 17

Amchem: 18

Phillips Petroleum Co. v. Shutts—... 18

Zahn case, Snyder case—page 696. 19


Covered by Rule 56. 20

Lundeen v. Cordner 21


Cross v. United States: 21


Under Rule 41(b)—... 22

McCants v. Ford Motor Co. 22

Messenger v. United States. 22

Default Judgment: 23

TWA v. Hughes. 23


Equity vs. Law.. 23

Beacon Theaters, Inc. v. Westover 23

Curtis v. Loethar on page 912: 24

Atlas Roofing: 24


Flowers v. Flowers. 25

Edmonson- 26

Kennedy v. Southern California Edison- 26

Nunley v. Pettway Oil: 27

Jury Misconduct: 27

Mansfield rule: 27

Does SOPP v. Smith stick with the Mansfield rule?  No they do not. 27

Post trial motions—... 27

Motion of judgment as a matter of law- 27

Galloway: 28

Daniel J. Hartwig Associates, Inc. v. Kanner 28


Cromwell v. County of Sac. 29

Civil war case on 1144:  M v. U.S. 29

Rios v. Davis—... 29

First Case: U.S. v. Deenis + Bank. 29


BLONDER-Tongue. 30

Parklane Hosiery Co. v. Shore: 31

Who is bound by issue preclusion: 31

Mutual issue preclusion: 31

Martin v. Wilks: 31

Black firefighters v. Jefferson County. 31

Intersystem preclusion: 32

Thompson v. Thompson: 32



Joinder of multiple claims and parties within one lawsuit.


Rule 18(a):


Why encourage joinder of claims? There is a gain in efficiency. 


Do the Federal Rules do anything to mitigate the potential unfairness?  Yes, under rule 42 you can ask, and the court can grant separate trials. 


Tenet case on p. 580.


Various employment claims.  Plaintiffs wanted to bundle them all into one lawsuit, and Tenet objected, the District court basically said join all the plaintiffs. 


Is there any limit for a plaintiff to join claims in Federal court?  Subject matter jurisdiction. 


Can I sue in Federal Court for a civil rights claim?  Yes.

What about joining a K claim in the same action in Federal Court?

Yes, it arises out of the same case or controversy.


Efficiency, if there is part of the same case or controversy, it is efficient to just get rid of it.


Rule 13  Counterclaim and Crossclaim


For practical purposes, most of the time and perhaps all the time, arising under case or controversy and arising out of the same transaction are the same thing. 


If S sues USD for civil rights violation.  Can USD counterclaim if it is the same case or controversy.  If same transaction or concurrence is narrower, then it may not be a valid compulsory counterclaim, but it may still be brought under 27 USC 1367 (under same case or controversy, which is more broad than transaction or concurrence under FRCP 13a).


Can you seek more than the plaintiff has sought against you?  Yes, you can.  Is this a compulsory counter claim?  Yes, it arises out of the same transaction. 


What is the penalty for failing to make a compulsory counter claim?  


If a defendant was required to make a counterclaim, then in a pre Schaeffer quasi in rem situation, then the defendant is using the court and is making a general appearance. 

What does rule 13 say about the penalty for failing to make a compulsory counterclaim?  It does not say anything.  It doesn’t tell us what the penalty is if you had a compulsory counterclaim and you fail, but Federal common law states that you can’t then raise this issue in a separate action in Federal court. 


If the state court will entertain it, then so be it.


Suppose plaintiff sues defendant in federal court for 100k, for a car crash, and D has a 50k claim against plaintiff, it is a counterclaim?  Yes, is it compulsory? Yes.  Can D make this claim in federal court?  Is there independent subject matter jurisdiction?  No.  Can D bring the counterclaim?  Yes, he can.  What authority? 


28 USC 1367 says about supplemental jurisdiction?  1367(a) says- if a federal court has subject matter jurisdiction over a case, then it has supplemental jurisdiction over all other claims within the same case or controversy. 


P sues D in state court, can D counterclaim in Federal court? 


Where does the limit on Federal subject-matter jurisdiction comes from? 


1367 Plaintiffs can’t bundle up claims of which there is no independent subject matter jurisdiction over. 


What about defendant?  Why control the plaintiff but not the defendant?  The defendant is not choosing the forum. 


1337 (b) doesn’t address defendants.  If it doesn’t say anything about defendants, then who is defendants covered by?  1367(a). 


Next time—Heyward, Robinson.


Under Rule 13(b) there is a category of counterclaim which the rule called a permissive counterclaim.  What is a permissive counterclaim?


P sues D for a car crash.  An example of a permissive (Rule 13(b)) counterclaim would be a counterclaim for defamation or an unrelated real estate action.


Can D counterclaim against P for an unrelated matter?  Yes.  What if this will confuse the jury?  Well in this case the court always has the Rule 42 discretionary trial provision, where they can order a separate trial.  But in principle, the rule is saying—let’s get everything out there.


Can D make an unrelated (permissive) counterclaim against P if this is a diversity action? 


Does there need to be supplemental jurisdiction?  If there


Suppose P sues D in federal court for violating P’s federal rights.  Can D counterclaim against P for a fender bender?  There is no supplemental jurisdiction.  Might it be possible for D to counterclaim against P for a fender bender—if there is diversity and jurisdictional amount.


Bottomline—if it is unrelated, you need to have independent federal subject matter jurisdiction.


Why is there no supplemental jurisdiction for an unrelated counterclaim? Not same case or controversy.  28 USC 1367(a)-says that in any civil action in which the district court has original jurisdiction the court shall have supplemental jurisdiction over all claims that are so related to the same case or controversy.  




P sues on the Navy Job, defendant counterclaims on the navy job and the non-Navy job. 


Federal jurisdiction because Navy job is regulated under a federal statute. 


The counterclaim: is the counterclaim on the Navy job, is there federal jurisdiction on the counterclaim ?  Yes there is. 


Stelma job dispute is not a federal question.  Can Heyward counterclaim in federal court on the Stelma job?  Court said yes because it arose out of the same transaction.  Under today’s law would it be a question of whether it was under the same occurrence or transaction?  No covered under 1367(a)—case or controversy.  Is there any difference between these two standards?  Probably not, despite the language difference.


More Heyward:  Can the counterclaim on the Stelma job go forward in Federal court?  Yes, the court said it was so closely related, it was basically either the same occurrence or transaction or case or controversy.  There was an insurance policy for both, is there anything else that links these two jobs?  Is the court bending over backwards here?  Yes, it seems to be, the court is letting them litigate it all at the same time, i.e. lets not have them go to state court and take care this separate suit. 


Who won in the trial court? D’Agostino won at trial court.  Now Heyward appeals and says, there was no jurisdiction over the counterclaim.  Is this a very appealing appeal?


Friendly says that this was not a compulsory counterclaim under Rule 13(a).  Specifically what 1367 makes clear—no supplemental jurisdiction over an unrelated counterclaim. 


Does a counterclaim go forward after the statute of limitations expires?


P sues D on a car crash.  Then a statute of limitations of the crash runs, then D counterclaims on P for the car crash—is the counterclaim barred?


Compulsory counterclaim—professor, courts will go both ways.


Permissive counterclaim-- Ask about this:


Cross-claims—do we have compulsory cross-claims? 


Is a related cross-claim compulsory?  No.


Counter-claim v. Crossclaim


A potential compulsory counterclaimant must make the counterclaim, but a cross-claimaint has the opportunity to assert this claim in a separate suit in a separate court, etc. 




If it is related, is there going to be subject matter jurisdiction?  Yes, because if it is related, but definition same case or controversy.


If it is unrelated, there is no cross-claim at all. No unrelated cross-claims under any circumstances.


A crossclaim by one defendant against another.


What is the scenario that might conceivably be dangerous to federal subject matter jurisdiction?  P-2 can jump on the chance to sue in federal court.  P2 waits until P1 does this.


There could  be a straw defendant suit, no interest in D1 and D2 and what they really want to do is create supplemental jurisdiction for themselves in Federal Court. 


Harrison Case: 


Under the rules and under the statute, who is more faithful to the law here?  3rd circuit in 1958, the 5th circuit in 1999, or neither?


Which view is better on the law?  Need to look at 1367 in conjunction with rule 13. 


What is the default rule for any claim in Federal court—subject matter jdx.  The only possible way out of that is 1367. 


Any claim by anybody against anybody that is related can also be heard even though there is no diversity federal question, etc.  1367(b) says that if the case is a diversity case, then there will be no subject matter jurisdiction by plaintiffs…(see recording).


A cross claim is a rule 13 animal, 1367 doesn’t exempt from cross claims and therefore there is supplemental jurisdiction. 


In order for there to be a crossclaim against the plaintiffs, there must be a case by plaintiffs v. (see recording).


Joinder rules 19 and 20 that authorize this.


If there are two plaintiffs, how do they get to be in the case.  Nobody says the crossclaim defendant is being brought in for the crossclaim, quite the contrary, a crossclaim is against somebody who is already a party.  How did your co-plaintiff get made into that party?  How was he able to join then with the other party?  This is the argument the other way.  The co-plaintiffs are Rule 20 plaintiffs and therefore claims against each other are precluded under 1367(b)—professor doesn’t think this works. 


Lasa Per L’Industria Del Marmo Societa Per Azioni v. Alexander


Italian marble company and they are suing the builder and the city.  They want to get paid for the marble they delivered to a city hall in Memphis.


Would have to be diversity between counterclaimant and defendant or a federal claim.  Is an unrelated counterclaim cognizable recognizable in court?  (see recording)


13(g) pleading may state as a crossclaim any claim arising out of the same transaction.


Independent counterclaims—yes (as long as there is independent subject matter jurisdiction).




Permissive Joinder Under FRCP 20


M.K. v. Tenet


Agents suing agency claiming obstruction—unlawful withholding of information.  Plaintiffs want to join together, defendant makes a motion to sever. 


Tactically, why do you want to join?  If it is one disgruntled guy, it may be dismissed.  But if there are many people making claims, the jury may be more prone to believing and it may be stronger.  Many weak claims together may be stronger than weak claims independently.  Also, you may be able to hitch a ride on a stronger claim. 


P sues D1 and D2 for a car crash, can he join for unrelated defamation claim? This is not a case of more than one person joining in the action.  It is a case of one plaintiff bringing unrelated claims?  What rule is this governed by?  This is governed by Rule 18—which says nothing about same case or controversy or being related.  Can plaintiff bring a car crash suit and an unrelated defamation suit.  What if one claim is strong and the other weak?  What might you do if you are the defendant?  Try to separate the claims under rule 42.  Rule 42 says that if it is unfair the court has discretion to ensure that everybody involved gets a fair trial. 


This is not what we are dealing with under Tenet.  Tenet is multiple plaintiffs against the CIA defendant.  Claims must be rule 20 related. 


What do you say if you are the defendant?  Say that the claims are unrelated. 

First prong of Rule 20.


Did the judge make the right decision or not?  The fairness of this is going to have to be argued in a case by case basis. 


Tanbro case: Wholesale fabric dispute. 


Seller sues buyer, buyer counterclaims saying that the goods were bad.  There was an intermediary and buyer also sues them (this is lawsuit #2).  Now what does he want to do, now the buyer wants to consolidate these cases.  T v. B and T v. A.  What is the danger from T’s (the buyer’s) point of view. 


Under what Federal rule can T join and sue both of these people in one lawsuit. 


The court says that we have to hear these cases together.  Court says that severing is an indication that juries can come up with inconsistent decisions, which would be unacceptable.  If you are the judge in a federal court, are you going to do the same thing or are you going to sever these cases?  The result should be the same.


We turn now to rule 19, what is known as compulsory joinder.


Rule 19(a) and Rule 19(b):

Rule draws a distinction between people who shall be joined if they can be, and typically it is drawn at necessary parties.  Rule 19(b) says if they can’t be, then you have to figure out what to do, including going forward. 


Provident Tradesman Bank & Trust Co. v. Patterson:

An example of how the court wrestles with whether an absent person is a necessary party, and if so and indispensable party. 


Dead people and an injured one who are going to be involved in law suits. 


Where does Lynch sue? In Federal Court under diversity basis.  Namely plantiffs are Pennsylvania and Cionci basically isn’t. 


They got the judgment, but the owner of the car has an insurance policy.  This is a 100,000 insurance policy.  We are going to get to this money very quickly.  Insurance company declined to be brought into the action. 


Action by Lynch against the insurance company for a judgment that Dutcher gave Cionci the keys and permission to use the car and if that is true the implication for the insurance company is that they will be liable on their policy covering Dutcher for what Cionci did. 

What is the problem with Lynch suing Lumbermans for a declaratory judgment.  What is wrong with this is that Dutcher isn’t in the picture.  Can’t add Dutcher because Dutcher would destroy diversity. 


Insurance company appeals and says that Dutcher is a Rule 19 party, indispensable rule 19(b) policy. 


You can’t have court judgment against you if you are not a party to the case. 


Harlan says it is too late.  Insurance company lost on the merits.  Harlan is saying, no.  Compare this to the case where Harlan took the opposite line (last week’s case—(week 1 case or maybe Tuesday of week 2).


What does Harlan say?


He didn’t make any claim in his insurance policy.  What about people suing him?  Statute of limitations has been running. 


19(b) says what do we do if he is necessary, if we can have him, we shall have him. 


Some scenarios:


Insurance policy is a good example: suppose there is a house and there is a dispute between you and me whether it is your house or my house.  Sue for judgment of ejectment.  Maybe there is a third guy out there who may claim that it is his house.  Is he a necessary party? Rule 19—is this a high standard or low standard of necessity?  This is a low standard of necessity.  Looked to professor that it is a necessary party, but not an indispensable one. 


Another situation: Racially segregated school, plaintiff in a civil rights organization and plaintiff is the city in a suit over busing and integration.  Any potential rule 19 parties here that aren’t yet party to the suit?  The students, in particular, and any students who will oppose this remedy.  Is the city going to impose the remedy and impose it very hard?  That will depend on the politics of the situation.  Are the students or the families who don’t want this, necessary parties?  Under rule 19, what is the answer?  Yes, they are probably necessary parties.  In their absence, they claim an interest related to the subject of the action…etc.  Are they indispensable?  What does the court have to do under rule 19(b)—balance things, prejudice, (see recording).




-Original party


When is the only time in which a plaintiff can bring in a third party?  In response to a counterclaim. 


In the absence of a counterclaim, who is it that brings in a third party (impleader is often called a third party practice—1st party is plaintiff, 2nd party is defendant, 3rd party is impleaded).  In the absence of a counterclaim, 3rd party practice means that a defendant will bring in a 3rd party.


What is defendant’s claim against D2.  3rd party must be responsible to defendant.  Defendant is the plaintiff in respect to the new defendant.  Rule 14 authorizes such a claim.


Why might you authorize such a claim?  Efficiency.


Suppose there is a car accident and plaintiff is a pedestrian and sues the driver and the driver says the manufacturer of the car may be liable to you as well and I want to bring in the manufacturer.  Is this third party practice under rule 14.  No, it is not?  What is the tort phrase for what this is?  Joint and severable liability.  The common law doctrine, the typical situation is that if you choose to sue me, very often we are jointly and severably liable. You can’t get a judgment against both of us or either of us.  A lot of times this is not the case, if you sue me, it is not even a partial defense to say that somebody else is responsible.  You do not have a 3rd party claim for this.


When can you bring in the other guy? 


Substantive law is that if I am liable to the plaintiff, then this other guy is liable to me.  This will happen quite often.


The other scenario is when D counterclaims against P, (the counterclaim can be either related or unrelated). 


Is the impleader going to be related or unrelated to the original suit? Related.  No way to implead somebody in order to bring in an unrelated claim.   



Talking about impleader under rule 14.  It is clear what an impleader is.  When a defendant may bring in a third party. 


Too Inc.

-Plaintiff Too is suing Windstar for copyright infringement.  Windstar wants to bring in a salesperson and a sales designer.  Windstar says that they are the ones who created the designers which infringed. 


Are they liable if they did steal the design?


Too may also not have sued them for Federal Diversity purposes.  If either of the guys is from New York, then they can’t be joined as defendants, so Too just sues Windstar.  If these people did it with Windstar’s participation, do they owe anything to Windstar if Windstar is liable to Too?  If there is liability at all, where would it come from?  The tort law of the state. 


What was the problem?  What is the issue? 


What is the one aspect of impleader that we haven’t really talked about?


Subject matter jurisdiction, the obvious problem:


With respect to whom must they be diverse for Windstar to implead them:  Neither, supplemental jurisdiction. 


A crossclaim has to arise out of the same case or controversy.  Avoid confusion of unrelated crossclaims, FORGET IT.  Crossclaim=related.


Unrelated counterclaims = permissive counterclaims. 


Let’s say that that Han and Abraham are from CA.  Can I implead somebody in an unrelated charge? 


If we are in Federal Court, what about smj?


Can a plaintiff claim or counterclaim against a third party?  Sure, but why?  It is all the same case.  What does rule 14 say about this?  The plaintiff, may assert any claim against a third party defendant arising out of the transaction. 


Timeout: We don’t much talk about California law.  Every once and a while it is worth noting how California handles that.  The smj of the state courts is plenary.  What CA does in order to simplify this is to say that they don’t need to worry about smj, so CA statute law simply calls them all crossclaims.  Unrelated permissive counterclaims are allowed, (i.e. if you sue me in tort, I can counterclaim against you in an unrelated contract).  Otherwise all the other crossclaims have to be related.  Under CA law they are compulsory.  You are required to bring up unrelated claims, or you waive it.  It is actually simpler than the Federal system. 



procedure where by a party, known as the stakeholder sues the claimiants or potential claimants.


Without an interpleader each could sue independent and win under both juries. 


Rule and Statutory Interpledaer. 


Discovery rules, rule 26.


State Farm Fire & Cas. Co. v. Tashire


State Farm interpleads


Company entitled to interplead in respect to its liability, and independent claims can be pursued independently.


What is the other question?

Subject matter jurisdiction-


State court there is a serious problem of personal jurisdiction. 


Basically, by statute a Federal Interpleader brought under the Federal interpleader statutes can


National service of process makes all other claimants subject to jurisdiction.


Complete diversity—was Marshall saying that the judiciary act requires it, or the constitution requires it? 


Specialty act purporting to create subject matter jurisdiction in a scenario like this. 


Arguably, minimal diversity will satisfy Article III, and it contradicts the longtime standard of Strawbridge.  Old cliché was the complete diversity was required by article III. 


What is the argument that national process is fair?  National personal jurisdiction in this context doesn’t violate basic fairness. 


What Congress did here was to say that it isn’t just to protect banks and insurance, but it is to protect economic activity which we want to go on. 


The plaintiff determines where the action is brought.  You will bring it where it is most favorable to you. 


Does that make you think twice about this remedy?  It might, but what is the alternative.  It will be convenient for the stakeholder, not the claimants. 


Footnote: Some debate about whether there ought to be federal common law governing multi-state actions like this, rather than going with the Erie approach. 


This minimal diversity concept has been used in other concepts as well.  There are mass tort statutes,




A way for a third party to interject themselves into a lawsuit.



Who are the would be interveners here?


Dr. Hansen isn’t allowed to intervene, but the parents were allowed to intervene.  The parents said, “we don’t want bussing, and…”


Does it let them be full fledged litigants?


Do they have some equity on their side?  There is, but the courts probably won’t allow a relitigation from the start.  What you tend to get is that intervention is going to be allowed as much as the court feels equity requires it without imposing too much burden on the courts. 


These people wanted to intervene as?


Does the intervenor need to be diverse?


Yes—1367(b), does the intervenor need to be diverse?  Does the intervener need to be diverse?  No—they are a defendant.  Ask about this.


If A wants to intervene as a plaintiff?  Supplemental jurisdiction—this is excluded by 1367(b). 


Sometimes it isn’t obvious which side the intervener should be on. 


For next time let’s put together class 5 and 6.


Discovery, important that it very often it sets the stage for settlement.  Once initiated many lawsuits don’t get any further than discovery.  The parties settle without actually trying the case. 


If you know your way around the federal rules, you know your way around almost all of the state rules.  Sometimes the Federal rules are amended and a given state doesn’t follow suit. 



Introduction and history of discovery:


Discovery means mutual inquiry and mutual disclosure.  What is the obvious philosophy behind it.  What is the big idea of discovery?  No surprises.  Surprise makes it harder for you to provide a false case. 


Discovery can be very expensive for the parties in ways that we will look at and talk about. 


When you have a civil law system (different countries) is a whole different universe and the judge finds out the information. 


No requirement that the information you are asking for is relevant.  The rules are very, very liberal.  The discovery rules and the overall summary of the rules, rule 26 WAS short. 


For decades the provisions for discovery took a while to make their way into the bloodstream and take root in the court with judges and the courts and the legal system.  By the 1960’s, it was in the bloodstream, but the costs began to mount up.


Potential for using discovery can be to telegraph to the other side that they will go bankrupt doing this (attrition).  The impression began to circulate that discovery was being used and abused tactically basically in order to bully opponents. 


In the 1980’s the object was to tighten up discovery, to make it cheaper, to limit it, and to make it less open to tactical usage by a party that would be hoping through discovery to drive the other party out of the litigation. 


Since the 1980’s there have been a series of amendments to the discovery rule, beginning with rule 26 and they have tended to go back and fourth.  The 80’s reforms cut back discovery, the Clinton era reforms, expanded it again.  There were further changes in the last 8 years. 


Rule 26 gives an overview of discovery, the following rules, the sequence of rules after 26, then specify a series of particular techniques of discovery and we will talk about the major ones in turn. 


RULE 26:

-The first thing in rule 26 (and this was a newly introduced idea in the 1990’s)—until the 1990’s discovery was what you asked for.  This put a stupid/unsophisticated or bad lawyer at a disadvantage. 


Quite early in a law suit, you SHALL disclose the following items, no request is needed and this is compulsory for everybody.


Disclose who has information, which will be used to support your case, specifically, what documents are there that you are going to use and rely on, what witnesses are there that you are going to rely on, and what damages are you claiming?  This is the required discoluse.


Moreover, as the litigation develops, if you are going to have expert witnesses,  must disclose who they are and what evidence will be available. 


There is enormous wrangling about discovery.  Party A wants disclosure, party B does not want to disclose…


The scope of this is very important and much litigated. 


Page 743—the spin has to be misleading, it is a default presumption in favor of somewhat narrower discovery.  How broad is broad and how narrow is narrow?  The rule doesn’t tell you and can’t tell you. 


Suppose that subsequent remedial measures aren’t remedial, and they’re not.  Are these rules available under rule 26—if you think it would be admissible.  While in principle they aren’t admissible, there are exceptions and you can admit the evidence, so as the plaintiff you say in discovery that you need this information to keep them from lying or to get the broad picture from which I can perhaps discover other evidence. 


Is information discoverable only if the information admissible?  Is discovery limited to admissible information? 


Rule 26(b) information relevant to the claim need not be admissible in trial if the discovery appears…(read rule). 


Can you grant the removal of the body from the grave?

-No, rule 26(c)—protective order, unduly embarrassing.  26(b) gives the broad availability of discovery.  26(b)(2) gives us some broad limitations.  26(a) is required disclosure, 26(b)(1) is the broad scope,


26(b)(2)-some limitations.  Court can regulate the techniques.


Discovery—the general policy and the general default presupposition of the discovery rules which were enacted in the 1930s with the Civ Pro rules have undergone some change. 


It is relevant if a reasonable person would say, “gee if I knew that, I would reasonably take that into account and that would make a difference.”


All other things being equal, if it is not outrageous, disclose.


3(b) on page 753

Is this within 26(b)—is it relevant?  Unless the plaintiff can show that somehow he automatically, habitually botched abortions, that is in good faith to my client, is this within 26(b)?  There is also a privacy issue, it is the patient’s privacy rights. 




In a child abuse case, finding out and examining what the child is pretty central, the child has to answer questions.


Sheila Roberts Ford Case:


Ford: Policeman killed my father.  She can’t sue who the cop is, she doesn’t know who she claims did it. 


Why didn’t she sue anybody?  Under Rule 11 as it stood at the time, Rule 11 required that you not file any paper without evidentiary support for your allegation.  Did she at that time have any evidentiary support that any particular person was a culprit?  No.  She probably didn’t sue the department for various immunity reasons. 


Are you entitled to discovery before you sue?  No is the answer.  Discovery is a procedure for acquiring or extracting disclosure.  If somebody plans to file a lawsuit they can’t initiate discovery.  Rule 11 would allow you to do it under Rule 11 (b)(3). 


Should discovery be available pre lawsuit? The danger is that people are concerned about privacy and anybody who wants to find out anything would be free to find out a discovery request on you. 


Marrese v. American Academy of Othopaedic Surgeons


What is your legitimate suspicion?  Discrimination, or the fact that they don’t want the competition. 


Next time: Seattle times v. Rheinhart—

Mandatory disclosure—Cummings case—


Seattle Times Co. v. Rhinehart


Discovery question:


Illustrates the same sort of thing that the nurses case illustrates, namely that under the federal rules the courts can and do try to stipulate safeguards in order to make disclosure more palatable and tolerable in order to facilitate the tendency of the discovery rules to favor disclosure.  Under what Rule Provision? 26 (c)—protective orders. 


Revisit very briefly, the mandatory disclosure requirement laid down by Rule 26(a)—look at


Cummings v. General Motors Corp.


Rule 26(a) mandatory disclosure. 

According to the opinion incoming, how did Rule 26 changed in 2000—


What is relevant to an action for negligent legal education?  Would all academic records be relevant to the subject of the lawsuit?


You only have to disclose things that you indent to use.  And so what does General Motors do?


Rule 26—as amended in 2000-Rule 26(a)(1)(A)-names of people that YOU the party may use to support your claims and defenses. 


GM—this is fatal for us, the last thing in the world would be for us to use this.


Under Rule 26 as it stands, they weren’t required to disclose. 


If you are a good lawyer you can have some imagination of what you can ask for.  Please disclose anything in your possession before the accident that suggested you should fix it.  Is this unreasonable to ask for? 


Parties should be required to disclose everything which we want to know. 


Rule 26(f)—requires a conference and the parties have to confer the plan for discovery.  How do we work together on these discovery elements, etc. 


The Mechanics of Discovery:



Depositions are unique to the United States, other common law countries by in large don’t have them. 


Depositions typically are called for in the offices of the counsel of the lawyer taking the deposition.  The deposition itself will proceed in question and answer form.  Is there a judge present?  Who is present?  The deponent, the lawyer for the other party and the court reporter.  The court reporter doubles as a commissioner for oaths and notary.  At the beginning of the deposition, the court reporter will typically ask the deponent to stand and administer the oath. 


Preserve the objection so that it can’t be used at the trial. 


In practice, this is what a deposition looks like—they are the gold standard of discovery and they are far and away the preferred means of discovery.  Why is discovery so much better?  They are answered in person by the client (unlike an interrogatory).  What is the crucial thing you need to do if you are in a deposition?  Listen to what they say and then follow up.  That is what you can’t do with written questions.  You not only ask your prepared questions, but you listen to the answers and something may provoke you to follow a trail. 


Who can be brought into a deposition?  A party may take the testimony of any person, including a party by deposition upon oral examination.  Whom ought you to subpoena?  You don’t need to subpoena an opposing party, if they don’t come they will be sanctioned under the discovery rules, they will have failed to comply with their discovery obligations.  If the other party doesn’t show up, they may be told they lost the lawsuit.  You also may not need to subpoena anybody else who you are confident will show up. 


Before 1990, how many depositions could you have?  As many as you wanted.  And how long could they last?  As long as you wanted. 


Physical and Mental examinations.  


A distinctive thing is the hope which is clear in the rules about telling parties please do this without the judge. 


The rule is so the parties get this stuff done without the judge.


You hear from the person and not the lawyer.  You can ask follow up questions.  It is available against non-parties. 


What are the crucial rule 30 things? 


1. 10 depositions per—suppose there is A and B and C and D and there are a lot of cross claims. 


2. 30(d)(2)—limited to 7 hours. 


3. 26(B)(2)-a general limit on discovery.


If you need a protective order, Rule 26(c)—deposition. 


Interrogatories—written questions, provided for in Rule 33. 


Rule 26(b)(2)—cost benefit analysis. 


Interrogatories used to be boilerplate.  Huge documents meant to prove that you had more resources and that you would be bankrupt. 


Conversion Technologies case-

Case where they


You will do this in stages and you will find out things as the discovery process goes on, and over time you will have to disclose what your facts and theory are by the time of trial. 


Answering interrogatories are done by the attorneys.


The general expectation is that the discoveree bears the cost of producing.  This plays into a practical difference between the American system and the British one. 


See recording about electronic documents.


Physical and Mental Examination:




Does the rule tell us what the criteria are?  What other discovery have we seen where it is discretionary with the judge whether the discovery be had? 


Is there discretion about document production?


Rule 35—burden on party seeking discovery. 


Why is this different?  Discomfort pain, invasion of privacy. 


What does a discovery seeker have to do to put something in controversy. 


Does the party have to answer questions on a psychiatric evaluation?  Probably.  Are we getting intrusive? 


In order to find fault, you have to find facts. 


If you were the Contract Carrier, how would you handle this?  Maybe go for fewer tests, don’t lead with psychiatrics. 


Is Black right? 


Is mental anguish a psychiatric question. 


Is there a danger, Douglas suggests that if the party seeking the examination and gets to hire an expert, the expert may be partial.


Should there be court ordered examiners rather than parties


Once you have a battle of the experts, is the jury going to be in a good position to evaluate these things? 


When and only when do you have to apply for an order to get discovery?  When it is relevant only to the subject matter as opposed to if it is relevant to the claim. 


Request to admit?


What does this substitute for that we don’t do anymore?  Pleadings.  What is the difference between doing it by pleading and doing it by requests to admit.  The timing is right before trial. 


So far we have been talking about fact admissions, but can I serve something that says, “please admit that I wasn’t negligent in doing ABC?”  Is this a property request to admit?  Yes, “application of law to fact.”


Hickman v. Taylor:


3 people drowned in a tugboat accident. 


Served with interrogatories. 


The rule as it extends today has been added to.  At the time, the idea is that there is nothing to justify the unwarranted intrusion into the files. 


How should the law be tilted?  Towards the lawyers who are quicker witted? 


Concurrence, the idea that in the non common law system, an inquisitorial law systems, you don’t have an adversary mindset.  You don’t have the idea that trust/justice best results will come out of a clash of contestants.  The idea, plausible or otherwise, out of the clash or debate, out of each party, each acting out of its own interests, that this is going to be the best way and you are going to get the best results that way.  Would not be an adversary system if you could get your opponents notes.


Discovery means that a lot of stuff that would ordinarily be private, stuff nobody else could get from you,


Was there another way to get this information. 


Rule 26(b)(3)—Court will protect, mental conclusions, theories, etc. (see rules). 


Is it in anticipation of litigation, do they have to disclose the memo?  Arguably no. 


That is work product in anticipation of litigation and it is not discoverable. 


In all three of these hypotheticals, US v. Adelman, the court said that all three of those scenarios should be protected.  Do you see a distinction between the pinto memo and these scenarios. 


UpJohn Co. v. United States


Illegal payoffs to get off shore business. 


Upjohn basically says that attorney client privilege extends to


Why do we have such a privilege?  Why have a lawyer client privilege at all.


Sanctions for failure to comply with discovery.


Rule 16: Pretrial Conferences; Scheduling; Management


Case management, means of mandating


The rules encourage courts to insist on much more forethought and organization and having a lot of the work done pretrial rather than at trial. 


Judges sometimes make particularly onerous demands on parties. 


Final big issue—the idea behind the federal rules originally is that there should be one set of rules for all civil cases.  The idea was also that the rules be pretty simple. 


How much does it cut against that simplicity that you are getting different local rules?


Velez case??


-Shot across the bow case, it does happen.  The rate at which this sort of things happens has increased, certainly over the decades. 



-Specialty in an area of the law. 

-Very summary overview of this area of law, aside from the major points.


What is a class action and why would you want one? The idea is that in a class action, at least one of the parties (25 is the minimum number for a class action), you are more likely to get class certification with no question asked about the size once you get to the 40 threshold. 


Why would anybody want this? 


-Where as an individual where you would need or want this?  If it was too expensive. 


The problem is that sometimes you have a real claim and it is a small wrong, or a wrong which is small relative to the rate of going lawyers.  Is it worth it for you to sue for a $1000 wrong, is it worth hiring a lawyer. 

-You don’t want people systematically wronging lots of people and not being accountable because they only wrong their customers 500 dollars worth so each person on their own can’t sue.

-Forces wrongdoers to pay up to some extent.


Any other kind of situation where an individual action doesn’t seem to make sense? 


Racially restrictive covenant. 



Where could there be a conflict of interest between lawyers and their class members?  Policy difference.  It is not only for money,  but for public policy.


Class Actions—


Rule 23-

Both a plaintiffs class action and a defendant class action.


With a group there is almost always going to be different damage issues, if there are questions of law and fact in common, do they all need to be in common?  No.  If some are common and some aren’t, does that mean the court should automatically grant a class action or not?


23(b)(1)(b) is an interpleader problem.


23(b)(1)(a) example would be voting rights. 


A 23(b)??(see recording) will probably be a public policy situation.  Which would you, if you are contemplating a class action, which would you prefer to seek?  A 23(b)(1) or a 23(b)(2)?


23(c)—in the end, who is it up to whether this will be a class action or not?  The party can propose a class action, but it will be the judge who decides whether this goes forward as a class action or not.  If I bring a lawsuit, either there is jurisdiction or there isn’t, if there is, can the court decide not to hear the lawsuit? 


Is the judge bound to appoint as counsel the council appointed to the case?  Why do the judge so much control the process of these class action?  The thing that is driving this is that in a typical case, the real parties and interests don’t know that it is going forward, they are absent, and the idea that if these people aren’t as a practical matter looking at it for themselves, who must look out for them?  The court. 


23(b)(1) is mandatory


23(b)(2) non money.


In a typical non mandatory money action, what you are seeking is damages.  A requirement of individual notice to all members, the best notice practicable.  Who pays for this notice?  Does the rule say?  Why will this be expensive?  Because you have to track down, figuring out who to notify and then notifying them represents a huge cost.  Does the rule tell you who pays for this?  No, it does not.  Have the courts in interpreting this told us who pays for this?  Realistically most of the time it is the plaintiff.  Often this is an insurmountable barrier to plaintiffs. 


Danger of settling a class action lawsuit.  The danger of conflict of interest is gigantic. 


Class actions—continued.

The court has the responsibility and power under rule 23.


By in large the state rules aren’t identical with the Federal rules.  23(g)(1)-list of cases that come down to experiences and sources. 


There is always a potential for conflict of interest.  The stakes in sheer financial terms can be enormous. 


Everybody has an interest in a settlement, but most class actions takes years, if not decades to move through the court system.  The incentives for the people actually in the room to settle this out and settle it quickly are obvious.  Do the class members have the same reason to hope for a quick settlement?  Yes, time value of money.




Asbestos class action.  Plaintiff’s council got together with all the other counsel for the companies, and they basically tell the companies that they are planning to sue all the companies, would you like to settle this case?


They agreed upon the settlement plan that awarded people who were exposed more than those who would be injured in the future.  The settlement sets up a fund designed to be available for the future claims that they actuarily can estimate. 


Trial court said, this looks pretty good to us.  The trial judge probably thought this was pretty efficient. 


Supreme Court—didn’t satisfy the predominance question. 


According to Breyer, the viewing should have been discretionary to the trial judge.  Must have been abuse of discretion to remand.  Ginsburg’s standard of review is not known. 


Jurisdiction question—


Why would anyone think that there needs to be personal jurisdiction over them?  Because the judgment will be binding on them, so they can’t sue on their own, and presumably this could make a big difference on some of them. 


When does it make sense to opt out?

-When you have a good claim for damages that exceed the damages you would get from the class action, AND you can file within the statute of limitations. 


Are you going to opt in?  Maybe.  Supreme court said that there is a big difference in absentee plaintiffs.  Class members have virtually  no control over this. 


What does Breyer say about Ginsburg? 


Phillips Petroleum Co. v. Shutts


Final question, personal jurisdiction is one issue, but what about oil leases and where were the oil wells?  In Texas, but the plaintiffs sue about the leases in Kansas. 


If they are applying Kansas law in a situation like this, what do you say about that if you are the defendant’s lawyer. 


Kansas will probably be favorable to plaintiffs.  The court says due process ultimately requires something different here. 


Under Due Process for a court to apply its own law to a dispute, what has to be the case about the dispute? It must have significant contacts.  Before a state can apply its substantive law, the forum must have significant contacts with the dispute.


Personal jurisdiction in Class Actions…


Subject matter jurisdiction-what are the crucial elements of subject matter jurisdiction.  If it is a federal question then there will always be federal subject matter jurisdiction. 


Which type of class action, which sort of class action is most often likely to raise a federal question?  The civil rights questions.  Category (2).  It is not just civil rights, but the public policy class actions are likely to be 23(b)(2)—why? 


-What are you seeking in a public policy class action?  An injunction.  If it is a really a policy case, what you really want is an order from the court to adopt your policy.  Examples are labor law, prison conditions, juvenile actions.


Is this type of class action procedurally favored or disfavored?  Are they easier or harder than other class actions? They are easier, but how? Notice is not essential.  The 23(c) best possible notice certainly isn’t required.


Is there another type of federal jurisdiction?  Yes, diversity.  What do you have to satisfy this?  Diversity and jurisdictional amount.  With a class action, what is the obvious question here?  Is jurisdictional amount sum or individual?  If it is individual this will probably hinder class actions.  Remember that individually it is not cost effective for these people to bring their claims.  It wouldn’t kill all injunction class actions, but it would kill a whole lot of damages class actions. 


Was there a clear consistent line of law about this over time?  Snyder—must be each individual person, then there were other cases.  For a long time the court didn’t know what to do with this. 


We are going to look for diversity for the named parties.  The message for the lawyers was to find people who were going to be diverse from the defendant.


Zahn case, Snyder case—page 696. 

After Snyder and Zahn, any alternatives?  Yes, the state court.  Will there be the jurisdiction in state court?  It depends, you need personal jurisdiction in these cases. 


Is personal jurisdiction the same in state court and federal court?  Personal jurisdiction is the same, whether you are in a state courtroom or a federal courtroom.  If you can’t do it in federal court, you can do it in state court. 


Which is more favorable to class actions?  Doing it in state court or federal court?  What would a more conservative Burger court would have thought about that?  If these are Burger court cases, what do you infer that they thought about class actions in federal court?  They don’t like them. 

Exxon case—which says that you apply 1367 rules, and as long as one person satisfies it, then everybody else satisfies it. 


1367(b) makes exceptions but Rule 23 isn’t one of them, and the Supreme Court concludes that as long as one person satisfies the class action, it is fine.


What about diversity itself? 


Do the class members all have to be diverse?  No, only the named parties.  This goes back to the Ben Hur case.


Can you do a diversity/damages class action, a 23(b)(3)—is this realistic?  Yes.  Exxon significantly opens the federal courts to damages class actions, which were dubious or clearly out under Zahn and Snyder. 


Who does this favor? In most class actions, the corporate party will be the defendant.  Corporate wants to be in Federal, but isn’t it up to the plaintiff where they sue?  Yes, unless there is removal, and you can remove to federal court. 


Has there been legislation on diversity?  Is there a legislative provision regulating how diversity is defined?  Yes, 28 USC 1332. 


1332 is quite a long statute, much longer than 1331 (Federal Question)


1332 is mostly about class actions. 


What is the thrust of 1332(d) governing diversity, i.e.


What is normally required going back to Strawbridge v. Curtis?  Complete diversity.  Is that required under 1332(d), what is all that is required here?  Only than any plaintiff (which probably means class member), ONLY ONE PLAINTIFF, has to be different from the citizenship from only one defendant, which makes it easy, so long as the claim is for at least 5,000,000.  What kind of diversity are we talking about here? 


Here to, 1332(d) is encouraging damages class actions in Federal court.  That favors the corporations or defendants. 


Why require a 5 million requirement?  They want big cases in the court.  All you need to do for 5 millions dollar claim is claim 5 millions dollars.


Going back to the older cases, before you get a judgment against somebody as a defendant, you must have personal jurisdiction over them. 




Covered by Rule 56.


Summary Judgment: On the one hand the idea of clearing out a transparently and obviously unmeritous case is attractive, yet there is also the pull of getting your day in court. 


The facts are so clear that as a matter of law, there is no question of fact.  If there is a dispute of fact, that reasonable people could differ about, or a dispute of fact under our system which a jury could decide, then it should go to the jury.  But if the jury could not lawfully decide one way then as a matter of law, there is nothing to decide. 


56(c) doesn’t say that there should be or may be, there should be summary judgment if there is no genuine issue of fact.


Cole porter on page 858—if you were Cole Porter or Cole Porter’s council, what would you put in,


Affadavit is a sworn statement in writing, it means, “he gave an oath,” or “he swore.”


The court denied the motion for summary judgment, and Judge Frank said that summary judgment should be allowed when there is even the slightest doubt as to the facts.


Is it possible that a happy song could be plagiarized and turned into a sad song?


Lundeen v. Cordner


A man died and his ex wife wanted to collect on a life insurance policy, but the deceased’s current wife wanted to collect on the policy as well, and planned to bring evidence showing that the deceased wanted and attempted to get his policy transferred. 


Does the court grant summary judgment?  Yes, but it is appealed and goes to the 8th circuit, which says summary judgment. 


Might you have a good reason to not cross examine the opponent if you are allowed to?  Yes, at any deposition cross examination is almost always allowed, but never used, if it is used, you have given up your cross examination. 


Under the Frank theory, is this a case for summary judgment?  Probably not.  Is there the slightest doubt here, sure.  There is.  Frank theory—SLIGHTEST DOUBT.  There is almost only the slightest doubt. 


Are we sticking to the Frank theory, or are we moving to the Clark approach?  If you are the courts, your motivation is less cases.  The idea of the country getting a lot more litigious, your chances of getting a civil case in front of a jury will never happen, it is a five year wait (or longer).  Courts are saying that they want to be more like Frank, but if it looks ridiculous, we are going to throw it out.




Asbestos case—what is the problem with these cases?  That the person at hand produced the asbestos in question.  The crucial question at least in many jurisdictions is what evidence do you have that the company at hand is responsible?


56(a) and (b) say that you can move for summary judgment without any evidence.  But you can always move, but the question is, are you going to win?


How can a party get summary judgment win if the party has no evidence?  This is the defendant and the defendant is saying that the plaintiff has the burden of proving that the asbestos belonged to the defendant. 


Defendant says, motion for summary judgment.  On the Frank theory, is this a case for summary judgment?  No, it is not.  Is the company lying, there is some doubt. 


The nonmoving party doesn’t meet their burden.  How does Rhenquist describe summary judgment?  In Clark terms or in Frank terms—Clark terms.  Rhenquist remands it for consideration to look at the evidence and determine if summary judgment was appropriate.  Rhenquist was probably thinking that it wasn’t going to be admissible evidence, but they held that the plaintiff did present sufficient evidence.  Will grant the summary judgment regularly if it is warranted.


Cross v. United States:

-Appeals court reversed

-Professor went on summer travels and he was accompanied by his wife and his dog. 


Is there an issue of fact as to what his intent was?




Allows moving parties to extricate himself from a lawsuit without affecting his legal rights.


If I sue somebody, why would I want to dismiss?  I have pursued the case and I have run out of money.


Which party will see voluntary dismissal?  This is a clearly a motion by the plaintiff.  Can you imagine any situation where it might not be fair for the plaintiff to pull out?


What is the one situation where the plaintiff can’t pull out?  If there is a counterclaim.  Assuming there is no counterclaim, of course the plaintiff can pull out, the question is whether or not they can sue again in the future on the same claim.  If they pull out and it is now res judicata against them, sure you can do that, but these are people who want to pull out and they don’t want the claim to count against them at a loss.  The danger, is that every time they think the case won’t go their way, they will pull out and the defendant will keep having to defend. 


To what extent can you pull out to the extent that it won’t be a loss and you can sue again, and to what extent will it be a loss?


The rule (Rule 41) says you can do it once, but there is a danger of harassment here.  If it is dismissed without prejudice, it means that there is no judgment, it is not res judicata, there is no judgment, and the case is still available for me to litigate and I can sue another day.


Federal court—unrelated counterclaim?  Yes.


If I withdraw the claim, can you proceed with the counterclaim?  It depends—on .


Under Rule 41(b)—


I sue you for 100,000 diversity, you counterclaim for $100, unrelated, what happens? 


What is the court required to order under Rule 41—the court shall not dismiss the claim.  From the defendant’s point of view, why is this the only fair outcome?  Why not let the plaintiff dismiss and eradicate the supplemental jurisdiction over the counterclaim? 


The claim shall not be dismissed if the counterclaim was pleaded before the move for dismissal. 


Move to dismiss after the counterclaim…read the rule carefully. 


McCants v. Ford Motor Co. 


I sue you, we exchange pleadings, do discovery, cook along for a year and then my not so bright lawyer discovers that the statute of limitations elapsed before we filed, and the lawyer says, can we dismiss as of right?  Can the plaintiff dismiss the claim without prejudice as a matter of right.


Can’t dismiss without prejudice—too late in the trial.  You can apply to the court to dismiss however. 


Clear sympathy for the plaintiff—was it wrongly decided, rightly decided? 


How is dismissal for failure to prosecute different?


Messenger v. United States


Failure to prosecute or comply with these rules or any order of the court. 


Can you give me a scenario in which I will not be able to plead amount X, prove amount Y, and not get amount Y.


Default Judgment:


TWA v. Hughes

-Default by reason of insanity—the court was sufficiently angry at Hughes for non cooperation and they hit him hard with a default judgment. 




Jury trial is a phenomenon in developed legal systems which is unique to the British systems and its heirs. 


Equity vs. Law


Equity was originally the church system, it was less formal.  Courts bound not by precedent, but by conscious.  There was no jury.  Equity was available if case was not available under law. 


Some states which have not merged law and equity. 


The Federal rules merged law and equity under Rule 2.  One form of action.


What right do you have for trial in the United States:


The 7th Amendment.  What does this clearly lay down and exclude—lays down to a right to trial by jury for common law cases, but not for equity. 


Right to trial PRESERVED from common law. 


Do you have a constitutional right for a jury trial at equity?  No, you do not. 


If you are seeking both an injunction and damages, can you do that now?  Yes, Rule 2, there is one form of action. 


Before the federal rules, there were two separate courts, so you could not seek equity and law remedies in the same court. 


Other problems, you sue in law and have a counterclaim in equity.  Some time has passed since1793 so, there are new causes of action—i.e. restitution.


Beacon Theaters, Inc. v. Westover


Treble damages—


Declaratory judgment—brought to get a declaration from the court to show that something is legal, illegal, or required. 


Fox sues for declaratory judgment, and Beacon says before I was going to sue you, and now I AM going to sue you.


What is the fact to be decided?  Whether this is an agreement in restriction of trade.  I.e. this is what the Sherman Anti trust act bars. 


Is it a question of fact whether a given agreement is a restriction of trade?  Depends how you define trade, depends how you define restriction—these are lawesque claims.  Negligence is like this.  Restraint of trade is a very technical legal term. 


Court will never enjoin somebody for x suing y.  It is available to enjoin threats.  Beacon is trying to shake us down, saying we will sue you unless you pay us off or let us show us movies.


If it is not really clear what should go first, then what should go first?  The jury trial, because this will trump the equity claim, because you have a constitutional right to a jury. 


The dissenters say that this is gutting equity.  It is gutting the 7th amendment restrictions to law.  One value will lose, you have to go one way or the other. 


I sue you for damages, is there a right to a jury trial.  Yes, which party has the right to a jury trial.  Typically, the little guy party wants a jury trial. 


What if the plaintiff and the defendant don’t want a jury trial?  The case can go to the judge.  A jury trial is expensive. 


Typically the plaintiff wants immediate results, defendant does not, so usually defendant will say, “I want a jury trial.”  Clearly the system encourages to trials by the court—i.e. judge tries the fact. 


What proportion of civil cases go to trial?  Less than 10%.  More than 90% of civil cases which are served are settled, or not prosecuted. 


Whether there is a jury depends on a demand.  The court should bend over backwards to give a jury trial, which means finding facts that will affect the equitable claim.


Note 1(a) on page 903.  One party wants a jury, one does.  Plaintiff seeks rederess for a single wrong but asks for both legal and equitable claims.  There is a jury trial.


Note 1(b)—pleads in the alternative—either damages or an injuction—does the plaintiff have to plead?  No, you can plead in the alternative.  One wants a jury trial, one does not.


Trial continued…


Fundamental legal remedy for law is damages.  Injunction you are suing in equity. 


Curtis v. Loethar on page 912:


Did the statue provide for a jury trial?  No.  Something about the civil rights act saying that there wasn’t jury trials because of fear of biased juries.  The Supreme Court said that the defendant got a jury trial.  The key thing is that there are damages.  Case at law and you get a jury trial.


Why might Marshall have decided this?  It was 1974 and he may have thought things were a bit different.  There is the pressure of intellectual and legal consistency and integrity. 


Atlas Roofing:


OSHA regulations imposed fine at an administrative hearing.  They wanted a jury trial, but didn’t get one at the administrative hearing.  Money, damages, jury trial.  If public rights being litigated, 7th amendment not violated.


Do you get a jury trial in any of the administrative proceedings?  No, it doesn’t exist. 


Court says “No” to the Atlas people.  Public rights exception to a jury trial.


Sherman Act they didn’t set up an administrative procedure to oversee these hearings, so if prosecuted would be with a jury.


Civil Rights Act—Congress creates agency to prevent discrimination. 


Suppose Congress created a national torts agency, with power to create ALJ’s. 


Interpleader—jury trial or not when there is a question of fact, jury trial. 


Class actions didn’t exist at common law, but you get a jury trial for these as well. 


Factual point: plaintiffs win more often in front of judges, but you get more money from juries…  What do you do?  Depends on how strong of a case you have. 




Constitutionally, is a 12 person jury required?  No. 


Majority juries, unanimous juries. 


The jury has been abolished in civil cases.  There are no civil juries anymore.  <ask about  burdens of proof in a non jury system—2/3 of jurors, etc.>


What are the argument against the juries?

-subject to being swayed by bias, emotion

-they may not be able to understand the law.  A lot of cases rely on expert testimony.

-expensive and slow


For the jury-

-12 heads are better than one


How can you reduce the jury requirement without Amending the constitution?

Water the jury down to one of lesser numbers of people- i.e 4 person jury.

Administrative law route—to what extent it would be to reroute even more disputes, would be a question.

Blue ribbon jury-in certain circumstances you can get a blue ribbon jury, which requires jurors of special qualifications (graduate degrees, etc.).  Argument against is that the blue ribbon jury is not a jury of one’s peers. 


In this country jury of your peers is meant to mean a randomly selected jury.


Empaneling the jury-


Venire—list of potential jurors.

Voir dire-questioning of potential jurors who have been selected.


Challenging Individual Jurors


Can be challenged by either party for cause.


Challenge for cause permits a prospective juror to be rejected because they are biased.


Flowers v. Flowers

-Issue about drinking and whether that will affect custody.


Supreme Court of Texas, her statements indicate bias and prejudice…This is a common way in which people give evidence of being partial. 


Preemptory challenges-  You can get as few as 2 or 3 and as many as the jurisdiction allowed.


Why make a few preemptory challenges available to council.

-Respect for council’s gut feeling that they aren’t being honest.




Plaintiff is black, defense counsel removed black jurors. 


State action—private action. 


Is it a preemptory challenge anymore if you have to answer the question why?


Does JEB leave us with no preemptory challenges for sex?  No, courts conclusion is that litigants may  not strike potential jurors solely on the basis of gender does not imply the elimination of all preemptory challenges. 


Dictum-says that using preemptory challenges to knock people off for sex is bad. 


What is the holding—this was a case where the state was a party and they were using it this way, one view is that the holding is that the state can’t use these challenges to remove jurors solely for being women.


Juries, voire dire, etc…


Jury instructions—


The rule doesn’t require that the court have proposed instructions. 


Some people feel instructions vary by judge and that juries will have a hard time making sense of this.


A lot of courts rely on form book instructions. 


Kennedy v. Southern California Edison-


The objection is pretty technical, the actual instruction talked about the risk of developing cancer, and the defendant wanted a greater verbal emphasis on the idea that in order to find against the defendant, whatever the defendant did was a substantial factor in causing cancer. 


Do they get a new trial? Yes, it seems so.  Was this just the judges instruction, or were the parties involved in them?  This was a situation where the court had asked for proposed instructions from the parties.  Once the parties point out that this is an issue, then potentially even a relatively small difference of how the instructions should be praised should justify a reversal. 


To what extent do you imagine would the insertion of the words “substantial factor” would have made a difference in the jury’s decision of the case.  This is hard to believe. 


If the judge asks both parties to submit instructions and the judge will choose one of either party’s instructions (without alteration), what does this accomplish?

-Both parties could be encouraged to submit clear, somewhat fair instructions.

-On the other hand this could favor good attorneys over inexperienced attorneys.


Nunley v. Pettway Oil:


Plaintiff was injured on defendant’s premises.  Whether plaintiff recovers or not, comes down to whether the plaintiff was a licensee or an invitee. 


Court—this goes too far.  Suppose the judge had instructed the jury—I think the plaintiff was clearly there for work reasons, then what?


The one impartial person in the room, who is experienced, is the judge.  And if the judge signals to you in any way, it’s up to you,  but suggests something, that will be hugely influential. 

Not surprisingly, which court system has an ethos of being democratic—state courts.  You will therefore not be surprised to learn that many states expressly forbid the judge to comment on the evidence.


In this case where the judge instructed the jury, “You are not bound by this, but I believe this is a licensee, not an invitee” the court says that this is too far.


Jury Misconduct:


Mansfield rule:

-affidavits of jurors may not be used to impeach their verdict. 


Why might you want such a rule?  We aren’t going to take affidavits from jurors impeaching the verdict? The losing party might harass jurors afterwards.  Maybe that a juror will have second thoughts or buyer’s remorse.  Is it a good thing or a bad thing to reopen jury verdicts. 


Does SOPP v. Smith stick with the Mansfield rule?  No they do not. 


Extrinisic—flipping a coin.


Intrinsic—a jury gives an affidavit saying that they misread the instruction. 


Post trial motions—


Motion of judgment as a matter of law-

When defense moves for a verdict—what does this resemble?  Summary judgment.  Is it different.  Summary judgment is typically a motion to preclude a trial.  To say that there is nothing even worth trial—if you are a democrat, should you vote this readily? No, because it cuts out the jury.


At the close of evidence, and the other party then makes a motion and says that no reasonable jury could find for that party, and I therefore want judgment as a matter of law, can such a motion be granted?  Yes, and that is FRCP 50.


Which is more democratic—before a jury trial, or after the evidence has been presented.  You’ve got the jury there, they’ve heard the evidence, is this the judge saying, I believe one side rather than the other side.  This is the judge saying that there is no reasonable dispute.  The secret here is the court being prepared to say that this isn’t a question of fact anymore, it is a question of whether a reasonable jury could find the facts for this side or that side. 


Judgment as a matter of law. 


Difference between judgment as a matter of law a directed verdict and a judgment non obstante verdicto.


Motion for a directed verdict was made before the case went to the jury.  If the emotion were granted, what would the judge do?  Direct the verdict—which means that


Can a judge direct a verdict for the burden of proof? 




Plaintiff’s objection—that the plaintiff had testified for himself and that there was conflicting evidence. 


Under the federal rule, what is the standard? FRCP 50-whether a reasonable jury would not have a legally sufficient evidentiary basis.


What happens if you make a directed verdict motion and the judge doesn’t grant it, the case will still go to the jury and you may still win.


In the language of rule 50, a reasonable jury wouldn’t have had enough believable evidence to decide against the movant.


Daniel J. Hartwig Associates, Inc. v. Kanner


What is the defendant’s defense?  In a breach of contract case, what does plaintiff have to prove?  That there was a breach.  Is there a possible defense here for the defendant?


The defendant just failed to testify accordingly?  There is another COA here, malpractice.  Clear and convincing evidence, this is a disfavored defense. 


Directed verdict= judgment as a matter of law.  Directed verdict sounds like the English tyrant judge in the Wilkes case.  Also the substance is that as a matter of the law the case is supposed to come out this way.


Difference between a directed verdict and a JNOV.  The point at which they are made.


Any prerequisite to making that motion? Verdict.  What has to have happened in order for you to make a motion, after the jury has come in?  Must make a motion before the verdict.


In order to make a motion after trial, you can make that motion and it can be granted, but you have to have moved for judgment as a matter of law BEFORE the case went to the jury.  This is a crunchy rule that is enforced. 


What does this imply that you should basically always do, make a motion for a judgment as a matter of law, because that and that alone preserves your right later on.


One reason the judge may let this go to the jury, is that the judge thinks no reasonable jury would come out that way, and they would and the judge doesn’t have to make the decision.  The other possibility is that it comes in wrong, and the judge enters a verdict, but this will always be appealed. 


Can a party move for a new trial?  Yes, but when?


Whenever the common law standard calls for a new trial.


What was the standard discussed before—no reasonable jury could come out that way.


What is the difference between moving for a new trial and moving for relief from judgment? 


Must move for a new trial within 10 days, but how long do you have to move for relief of judgment?  Within a reasonable time, it depends on what your basis for seeking relief for judgment is. 


Rule 60 relief occurs most often for defaulting parties. 


Next time, is there a distinction between Kaufman’s Cinema 42nd street and a lawyer saying, sorry I should have been here but I wasn’t?


Court’s don’t like default, they think it is unjust, so they do grant a Rule 60 motion. 


Where would a court most likely grant a Rule 60?  Where somebody didn’t receive the notice and thus defaulted the law suit.  Judges think that default is unjust.




Cromwell v. County of Sac


Defense was that these were fraudulent bonds, the jury seems to believe them because they have won.


Fact that litigation turned out badly for Smith, shouldn’t mean that Cromwell is barred. 


Civil war case on 1144:  M v. U.S.


The first few times the issue was litigated, it was about whether this guy served in the civil war for pension purposes. 


M won in the first case.  Ultimately, what is the verdict that he is going to get in each case? 


Rios v. Davis


Popular sues Davis for negligence in the car accident and this was a contributory negligence jurisdiction. 


D’s defense that Popular and Rios were both contributorily negligent. 


Davis wins the suit, because any negligence by the plaintiff means the defendant wins.  That is case 1. 


Next case is Rios suing Davis.  Davis’ defense is that the accident has already been ruled on, and had already found negligence.  Rios is already contributorily negligent and the jury has already decided this.


Claim preclusion represents a doctrine that once a party has sued on a claim or on a case they are precluded from bringing suits.  You are required to sue on the whole claim, there is no splitting it in Lord Coleridge’s terms. 


Issue preclusion is something different.  Sometimes with respect to different cases or controversies, there might be an element of a different claim which was decided in the first claim, and if so, if the issue was actually and necessarily and perhaps importantly litigated in the earlier case, then at least the same parties or their privities are going to be precluded from relitigating.


Cadet at the Naval academy case.  The new claim is different.  The issue is the same.  At least P and D can rely as against the loser on the first time around on the adjudication of the issue. 


Take a look at the first example situation that we didn’t talk about last time, namely the La Salle County v. Young Men’s Christian Association of Ottowa—


First Case: U.S. v. Deenis + Bank

50 years later the successor in interest to Deenis came to court and he wanted to challenge the judgment because it was a default judgment.  The Housing Authority has bought Deenis interest.  The bank’s successor is the YMCA.


Housing authority says that Deenis was right, it is my land, YMCA’s defense is that the issue had already been adjudicated, and therefore we should win.  Is this right? 


The case is 50 years old, you don’t want to relitigate this.  The question is whether or not the case was actually litigated. 


Supplier v. Mfr. Defendant. Note 1 on page 1157


If they had litigated their defense would have been that they were defective, but it was not worth defending. 


A buyer sues the manufacturer and says the computer blew up and destroyed our work.  The manufacturer says that it was the chip that was bad, and they want to say (before they say anything they want to implead the supplier and say if the computer was bad it was the supplier).  The supplier says that it was already adjudicated.  Is this the same claim or a different claim?  Is it the same issue?  Well, yeah, it is the same issue in the sense, can the supplier invoke, issue preclusion because arguably it is an issue that has already been adjudicated as between the two parties? 


If you had preclusion, you would tell people to litigate everything.  You are telling people to litigate, something very small now, could be something very small later. 

Default judgment is litigated matter, but under special circumstances, the absence of an incentive to litigate might be relevant in the application of collateral estoppel (issue preclusion). 


Insufficient motive, or that the issues aren’t really the same. 


Under the mutuality rule, who is bound by issue preclusion:




A sues B, B wins.


A then sues C.  Suppose it is a contributory negligence state, the reason that B won, was that the jury accepted that A was contributorily negligent.  If it is true that A was driving negligently, presumably it is negligent with respect to the incident.  Under the mutuality rule, can C invoke issue preclusion.


By mutuality, what do we mean?  If A won the first time around, B says you were contributorily negligent, judgment for A.  Now A sues C, can A say, and C claims A was contributorily negligent.  Can A do that?  No, A can’t, C will say that he didn’t get his day in court. 


What if A lost to B, and couldn’t invoke it against C.  So C shouldn’t be able to invoke it against A. 


Is that really the saying of mutuality.  If A wins, what is C’s objection to issue preclusion—“I never had my day in court.”  Does A have the same objection, no, he did have his day in court.  The mutuality doctrine said that you shouldn’t be bound by an earlier judgment which if it had gone the other way you wouldn’t be able to invoke against the new opponent. 


Bernhard the California case from 1942.


Mutuality: A sues B, B wins.  This means that when A sues C, C can’t cite collateral estoppel to preclude A from bringing suit.  This is because of mutuality.  I.e. If A had sued B and WON, and then C sues A, C would certainly be allowed to bring his suit against A, because C needs his day in court.  Thus A can’t preclude C, so therefore C can’t preclude A in the previous scenario.




1st case is:


UC (Chicago) v. Wygand:

Wygand says that the patent is invalid.  Wygand wins.


Now UC sues somebody else, Blonder-Tongue and they say that UC has already lost.  The supreme court goes for it. 


So much for mutuality—


Parklane Hosiery Co. v. Shore:


(1) SEC v. Parklane-misleading proxy statements (SEC wins)


(2) SH v. Parklane


The stock holders say that this has already been litigated and therefore you don’t get a second bite at the apple.


What if the SEC lost on the first case?  Then SH sue, can Parklane say that we can’t relitigate we have already won?  No, they can’t.  Due process, the stockholders never had their day in court.


Who is bound by issue preclusion:


Parklane SEC case.  Did Parklane get a fair shake here? 


There was a movement at about the time Park Lane was decided in a time when liberal courts were allowing non mutual offensive collateral estoppel. 


Is it different if A had won the first one (Pan Am situation)?  What if F wins and A-E all lose vs. Pan Am. 


Is there a party against whom offensive non mutual collateral estoppel is not available? 


The government, at least the federal government, says this is a great doctrine, but it’s not applicable to us. 


Suppose CA prosecutes defendant for a crime, and the accused is convicted.  Now, a private lawsuit against the defendant is filed. Is it res judicata in the classic sense, the claim sense?  No, government, criminal case, civil case, there are two different claims.  Can plaintiff invoke issue preclusion on the crime (collateral estoppel).  In principle, what has to happen on the first case for issue preclusion to happen in the second case?  The first case must actually have been litigated. 


What if you are rich and you are being prosecuted for fraud or something, what do you now have a huge incentive to do?  Plead guilty.  Issue preclusion is available only for actually litigated issues. 


Prosecutors have the public, and the resources, and also ability to give immunity for information. 


Mutual issue preclusion:


Final interesting thing:


Martin v. Wilks:


Civil Rights action in which there is a consent decree—


Black firefighters v. Jefferson County


Firefighters won.  Then white cops/firemen say: ‘We don’t like this.”  If you are the county, what do you say when the white firemen sue?  Issue preclusion.  Then Congress comes along, and signs an amended civil rights act—saying no challenges to employment dissent decrees. 


Is this fair?  Well the white firemen don’t get their day in court. 


Did the white firemen also have an opportunity to intervene? 


Rule 20 leaves open the degree of intervention, in other words what rights are going to be, what rights an intervener will have as a party to the case.  It gets messy and very complicated. 


Issue preclusion: offensive, defense, mutual, non mutual.


Fundamental difference between issue preclusion and claim preclusion? 


Intersystem preclusion:


Class 21: Read 1034-1037.  Read that on enforcing judgments so that you will have some background on what some of the issues are.  Once a plaintiff has a judgment, how do you get the judgment executed, especially if the defendant is slippery and has disappeared from the state. 


Intersystem preclusion:


Basically what is the problem here?

American Airlines case:

Questions of preclusion that is part of a different court’s judgment.  A plane goes down and a suit is filed by passenger X in Texas.  The passenger wins.


The company removes it to federal court and now what happens?  Another passenger vs. AA, they try to sue in New York (state ct). 


Plaintiff in NY suit says that its precluded, the only issue that remains is the amount of damages.  The airline then says—


Does Y win the case on collateral estoppel claim?  Yes.


Thompson v. Thompson:


Child custody case.  Father is trying to invalidate Louisiana court’s decree where the ex-wife moved with the child.  The Louisiana court will say that they will make an order to give exclusive custody to the mother.  The father lives in CA, the CA state court gives exclusive custody to the father.  Which one prevails?


Allen v. McCurry—1192:


State v. McCurry—McCurry convicted after a jury trial (state wins).


Then he sues the cops for a civil action.


Cops motion for defense, this has already been litigated, issue preclusion.


How does it come out? District court grants summary judgment.  Appeals reverse, Supreme court disagree with court of appeals.  Unlikely that he will be successful when he brings the action against the cops.


Basically the Supreme court rejects the appeals court’s view that the plaintiff has a federal court right to litigate habeas corpus