Civil Procedure II Pre-Writes

Intervention:
 Intervention Generally: Intervention is a modern joinder device that did not exist at common law, but
was added into the Federal Rules of Civil Procedure in the 20th century. Intervention is governed by
FRCP 24. As litigation became more complex, more parties wanted to be involved in litigation initiated
by other parties. Courts needed to have control over the process to prevent the intervention from
impeding the judicial process.
 Intervention as of Right: Rule 24(a) governs intervention as a right, where a movant’s interest in the
case is obvious. Courts are required to permit timely intervention under Rule 24(a) if the movant fulfills
either Rule 24(a)(1) or Rule 24(a)(2). Rule 24(a)(1) is satisfied if a federal statute provides an
unconditional right to intervene. Rule 24(a)(2) is satisfied if: (1) the intervention is timely; (2) the
movant claims an interest; (3) there would be a practical impairment of the ability to protect the interest
if barred from joining; and (4) unless there’s adequate representation by an existing party. Also, the
United States has a right to intervention where the constitutionality of a federal statute is questioned.
 Timeliness: If the intervention is late, courts may apply a balancing test to determine whether
the intervention still qualifies under Rule 24(a)(2). This includes four factors: (1) whether the
intervenor knew or should have known of his interest in the case; (2) whether there was prejudice
to existing parties from the delay in seeking intervention; (3) whether there would be prejudice to
the intervenor if intervention were denied; and (4) whether there are any unusual circumstances.
Floyd v. City of New York.
 Movant Claims an Interest: There is continuing debate among courts what is required of this
standard. For a movant to claim an interest, that interest does not have to be direct, but it must be
a significantly protectable interest. If an interest is too general, it can be shared by too many
members of the public, and there is no way to limit intervenors. Allard v. Frizzell; NRDC;
Grutter v. Bollinger; SFA v. Harvard.
 Practical Impairment of Ability to Protect the Interest: Parties who are not permitted to
intervene will rarely be barred from future suits under res judicata, but stare decisis may present
issues in later suits in the same court. Res judicata binds the individual parties to the suit, so this
will likely not be an issue for individuals who are denied intervention. However, if a court makes
a decision on the issue of the case, that decision will have a stare decisis effect and will affect the
outcome of the litigation of the individual who was denied intervention. NRDC.
 Unless Adequate Representation by an Existing Party: Adequate representation by one of the
existing parties may already exist for a movant seeking to intervene. However, if the interests of
the parties diverge, this is not considered adequate representation. Amicus curiae briefs are often
offered as a consolation when intervention is denied. However, an amici is not a party to the
litigation – is not bound by the decision, cannot be involved in the trial, settlement discussions,
motions, or appeals. Most parties are dissatisfied with this option. NRDC. Grutter v. Bollinger.
SFA v. Harvard.
 Permissive Intervention: If a person’s interest in the case is not obvious, the individual may still be
able to join the case as a permissive intervenor under Rule 24(b), but it is left to the court’s discretion.
Under Rule 24(b), permissive intervention is permitted if (1) the movant is given a conditional right to
intervene based on statute; or (2) the movant’s claim/defense and the main action have questions of law
 or fact in common. Permissive intervention cannot be reviewed by an appellate court, but intervention as
of right cannot.

Class Actions:
 Class Actions Generally: Class actions are a derivative of an equity court practice of permitting large
groups of parties to join and be represented by one party for the purposes of more efficient litigation.
Rule 23 on class actions was amended to its current form in 1966. Class actions help empower plaintiffs
to bring cases that would otherwise be impossible to bring due to financial or resource restraints. Class
actions can be with groups of plaintiffs or with groups of defendants. This system works to hold
defendants accountable to large groups of people. Critics of class action lawsuits argue that Rule 23
encourages lawsuits without merit. To be certified as a class action, the class must meet all the
requirements of Rule 23(a), and qualify as a class under either Rule 23(b)(1), 23(b)(2), or 23(b)(3).
 Rule 23(a): To be certified as a class, all class action suits must meet all four of the following
standards, in addition to meeting the standards of one of the 23(b) options. Rule 23(a) requires:
(1) Numerosity. This means that the class is so numerous that joinder of all members is
impracticable. Basically, only do a class action if parties are spread out geographically or too
numerous to all be joined. (2) Common issues of law or fact. This standard requires that all
members of the class have questions of law or fact in common that can be resolved by the same
suit. Walmart v. Dukes; Tyson Foods v. Bouaphekeo. This doesn’t mean that the questions must
be identical, but requires class members to demonstrate that plaintiffs have suffered the same
injury and that it’s not about raising common questions, but rather about the capacity of the
class-wide action to generate common answers. (3) Typicality. The claims or defenses of the
representative parties are typical of the claims or defenses of the class. (4) Adequate
representation. The representative parties will fairly and adequately protect the interests of the
class. Class actions will only bind members of the class who were adequately represented by the
first suit. Hansberry.
 Rule 23(b)(1): A class can be a 23(b)(1) class if it meets all the requirements of 23(a) and: (A)
separate actions by individual members would create a risk of inconsistent adjudications which
would establish incompatible standards of conduct for the party opposing the class; or (B)
individual adjudication would, as a practical matter, be dispositive of the interests of potential
class members not party to those adjudications. Rule 23(b)(1)(B) is most usually a limited funds
action. This happens when the class seeks to recover money from a limited fund and that future
members would be prevented from recovering if not a party to the first suit.
 Notice: This type of class action does not require notice, although courts may direct
parties to complete appropriate notice under certain circumstances and, because the
actions are mandatory and do not permit any kind of “opt-out,” their rulings are binding
on all members of the class via res judicata. Rule 23(c)(2)(A).
 Rule 23(b)(2): The party opposing the class has acted or refused to act on grounds that apply
generally to the class, so final injunctive relief is appropriate respecting the class as a whole.
Walters v. Reno. Rule 23(b)(2). This type of suit is common for civil rights cases.
 Injunctive Damages v. Monetary Relief: This standard does not preclude monetary
relief necessarily. If monetary relief is appropriate, the damages portion of the remediate
package must not predominate. Although monetary relief is still possible under Rule
23(b)(2), claims for individualized relief do not satisfy this rule.
  Factual Differences: Even if there are factual differences between parties, the class may
still be certified under Rule 23(b)(2) if the relief requested is similar enough. Members of
the class need not be situated exactly the same. Walters v. Reno; Rosenberg v. University
of Cincinnati. Rule 23(b)(2) applies to groups who have been subject to the same process,
procedure, or action, while greater similarities are required for 23(b)(3) certification.
 Notice: This type of class action does not require notice, although courts may direct
parties to complete appropriate notice under certain circumstances and, because the
actions are mandatory and do not permit any kind of “opt-out,” their rulings are binding
on all members of the class via res judicata. Rule 23(c)(2)(A).
 Rule 23(b)(3): Rule 23(b)(3) is authorized when the court finds that the questions of law or fact
common to class members predominate over any questions affecting only individual members,
AND that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. This is not merely about the common issues outnumbering the
individual issues – it involves both a qualitative and a quantitative assessment. Butler v. Sears,
Rioebuck & Co. This type of litigation was originally common for federal claims, like antitrust,
securities fraud, and civil rights. The doctrine began expanding to include mass tort actions,
products liability, commercial, and consumer claims. Jenkins v. Raymark Industries. Drafters of
the 1966 Amendment were not thrilled with the prospect of 23(b) being used for mass torts, but
mass accidents are more appropriate for it than other mass tort claims.
 Pertinent Factors: Rule 23(b)(3)(A)-(D) lists four factors pertinent to determining
whether a Rule 23(b)(3) class certification is appropriate: (A) the class members’
interests in individually controlling the prosecution or defense of separate actions; (B) the
extent and nature of any litigation concerning the controversy already begun by or against
class members; (C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and (D) the likely difficulties in managing a class action.
 Differences in b(3) and others: (b)(3), unlike (b)(1) and (b)(2), requires a greater
commonality between members and requires that a class action be the preferable choice
of litigation. Additionally, simply because there is a large number of class members does
not mean that class action is the superior choice. This is especially true where the
circumstances between class members differ and/or the desired relief is different.
 Notice: A (b)(3) certification requires that all members be notified of the suit and be
given the opportunity to opt out of the litigation. This is also a distinction between the (b)
(1) and (b)(2) certifications where notice is not required. Prior to any settlement or
agreement, parties must receive a second opt-out notice. Rule 23(c)(2)(B).
 Not Mandatory: This type of class action is not mandatory. Members must be given the
opportunity to opt-out of the litigation via court-directed notice prior to litigation. Res
judicata only applies to the members who do not opt out. Members who opted out cannot
claim collateral estoppel later if the class action suit is successful.
 Subclasses: Where appropriate, Rule 23(c)(5) permits a class to be divided into subclasses that
are each treated as a class. Prior to determining whether a subclass is appropriate, the class must
meet the qualifications for certification under parts (a) and (b). Castano v. American Tobacco
Company. Additionally, too many subclasses may be unreasonable and unworkable. With large,
multi-state class actions, breaking the class into subclasses based on state may be the best option.
 Problem of Representation: Once a judgment is final on a class action, members of that class
may not seek any further suit against the defendant in the original case because of res judicata. If
 members are not adequately represented in the initial suit, this will impede the member’s ability
to obtain appropriate redress.
 Differing interests: Although members of a particular class may meet the same criteria,
they may not have the same interests. In those cases, courts may rule that they are not
bound by the judgment in an earlier suit. Hansberry v. Lee.
 Due Process: There has been a failure of due process only in those cases where the
procedure adopted does not fairly insure the protection of the interests of absent parties
who will be bound by the judgment.
 Notice: Since 23(b)(1) and (b)(2) classes do not require opt-out provisions, notice is of
particular concern/importance when determining if a class member has been adequately
represented in an earlier law suit.
 Settlement: Rule 23(e) governs settlements for class action lawsuits. Traditionally, only 23(a)(4)
questions of adequate representation needed to be satisfied before parties could move forward
with settlement approval, but modern courts have ruled that, before settlement can take place, the
class must be completely certified by the court under 23(a) and (b). Amchem Products, Inc. v.
Windsor.
 Court approval: Claims, issues, or defenses of a certified class may be settled,
voluntarily dismissed, or compromised only with the court’s approval. Rule 23(e). The
court must determine that the settlement is fair, reasonable, and adequate. This is to
prevent defendants from necessarily buckling under the pressure of enormous class action
lawsuits where the action may accumulate to big dollar amounts if litigated.
 Fair, reasonable, and adequate: The courts have used several factors to
determine whether the settlement was fair, reasonable, and adequate. In In re Dry
Max Pampers, the court looked at (1) whether the settlement gives preferential
treatment to the named plaintiffs, while only perfunctory relief to the unnamed
class members; and (2) subtle signs that class counsel allowed pursuit of self-
interests and that of certain class members to infect the negotiations. In Poplar
Creek, the court looked at (1) the perceived risk that the settlement is the result of
fraud or collusion; (2) the complexity, expense, and likely duration of the
litigation; (3) the amount of discovery already engaged in by the parties; (4)
likelihood of success on the merits; (5) opinions of class counsel and class
representatives; (5) likely reaction of the absent class members; and (6) public
interest and policy.
Discovery:

 Discovery, Generally: Discovery is governed by FRCP 26 – 37. Broad, pre-trial discovery is a modern
phenomenon that is linked to other procedural developments, like notice pleading. Discovery has
evolved over the life of the American judicial system, but the modern version of discovery serves two
purposes: (1) to narrow and classify the basic issues between the parties; and (2) as a device to ascertain
the facts, or information as to the existence or whereabouts of facts, relative to those issues. Mutual
knowledge of all the relevant facts gathered by both parties is essential to proper litigation, but the
modern iteration of this process moves the bulk of the discovery work to the period immediately
preceding the trial as opposed to doing it throughout. Discovery must be (1) proportional; (2) relevant;
and (3) non-privileged.
 Limits on Discovery:
 Interrogatory Limitation: Because discovery can become too burdensome, courts have retained
authority to excuse plaintiffs from excessive interrogatories until a substantial amount of
discovery is completed, particularly document inspection. In re Convergent Technologies
Securities Litigation
 Good Faith and Common Sense: Good faith and common sense is paramount in the court’s
evaluation of these processes. Courts do not want to waste parties’ money or time. Discovery is
meant to simply make information free for both sides
 Proportional: Generally, judges ask that the discovery process be proportional to the case itself,
as indicated in Rule 26(b)(2)(C). Kozlowski v. Sears.
 Discovery Devices:
 Initial Disclosure: Initial disclosure is governed by FRCP 26(a)(1). In most jurisdictions, there
are some pieces of information and core materials that must be turned over before formal
discovery begins. This includes witnesses and documents that may be used to support claims or
defenses. There was, originally, hope that required initial disclosure would supplant the
discovery process. This has not actually happened, primarily because disclosure does not require
the submission of documents that may be harmful to the disclosing party’s position.
 Harmful Information: Parties are not required to give their opposing parties evidence
that hurts their case. This allows attorneys to both do their own work (rather than the
work for the opposition) and advocate zealously for their clients. This rule was created in
a 2000 amendment that was made from fear that initial disclosure would chill the
naturally adversarial process of litigation.
 Mandatory: The 2000 amendment also made initial disclosure mandatory so that district
courts could not “opt-out,” which was an option under the previous version of the rule.
 Evidence Not Disclosed at Initial Disclosure: Evidence that should have been disclosed
at the outset, which is not disclosed, may be prevented from admission if the admission
benefits the party who failed to disclose it. This system is meant to incentivize parties to
disclose information initially and to prevent the party controlling the information from
having an unfair advantage at trial.
 Requests for Production: FRCP 34 permits parties to demand an opportunity to inspect, copy,
test, or sample documents, electronically stored information, or tangible items possessed by the
other party. This is often a staring place for examining witnesses in deposition.
  Interrogatories: Interrogatories are governed by FRCP 33. Interrogatories permit parties to send
written requests to another party that must be answered under oath. Interrogatories can easily be
generated in voluminous form and can be very burdensome to answer. On the one hand,
interrogatories are not very helpful because well-skilled lawyers can coach their clients to give
less useful answers. Interrogatories are more affordable than depositions. Additionally, attorneys
may send follow-up interrogatories if unsatisfied by the first interrogatory. Follow-up
interrogatories are less convenient and effective than depositions where attorneys can change
their questions in real-time to elicit more information.
 Contention interrogatories: Governed by Rule 33(a)(2), contention interrogatories are
questions that seek a party’s opinions regarding contentions within the pleading. The
1970 Advisory Committee Note to Rule 33 states that “interrogatories may not extend to
issues of ‘pure law,’ i.e., legal issues unrelated to the facts of the case.” However, an
interrogatory is “not objectionable merely because it asks for an opinion or contention
that relates to fact or the application of law to fact.”
 Deposition: Depositions are governed by FRCP 27-32. Depositions are interviews in which
questions, posed by attorneys, are answered by opposing parties. Deposition is an advantageous
discovery tactic. It tends to elicit more information than the others, and is time-effective.
Depositions, however, are extremely costly, as it requires the presence of at least two attorneys
and may last for hours.
 Physical and mental examinations: Physical and mental examinations are governed by Rule
35. These discovery devices require prior court approval and “good cause.” Usually, these
examinations are not controversial and when requested, are obviously needed (Davis v. Ross) (as
in tort actions, where plaintiff’s physical or mental state may be of high importance to the
litigation).
 E- Discovery: E-discovery has increased in importance as people come to rely more on
electronic communication and storage of information. E-discovery is different from regular
discovery because (1) there’s an increased volume of data; (2) the data is dynamic in nature; (3)
attorneys may be unfamiliar with software and systems; and (4) attorneys fear sanctions. Two
main issues have arisen from e-discovery practices, including (1) to what extent social media
postings are subject to discovery; and (2) how parties can discovery emails and other digitized
information held by the other side. Social media postings are often discoverable, so long as they
are relevant to the suit. Privacy settings on social media are not important; discovery will take
place regardless of privacy standards.
 Scope: The scope of discovery, governed by Rule 26(b)(1), is limited to discovery regarding any (1)
non-privileged matter that (2) is relevant to any party’s claim or defense. Federal Rule of Evidence 401
states that evidence is relevant if it has the tendency to make a fact more or less probable than it would
be without the evidence, and the fact is of consequence in determining the action. Even when relevance
is established, protective orders can be used to protect privacy and various interests. Rule 26(c) permits
courts to enter such orders for “good cause” to protect parties against annoyance, embarrassment,
expense, etc.
 Party Finances: Inquiry into a party’s financial status may not be permissible, but it may be
allowed when it comes time to calculate damages. (See Davis v. Ross)
 Attorney-Client Privilege: Courts are reluctant to pry into the details of the attorney-client
relationship. Therefore, billing information between client and counsel may not be discoverable,
even when the attorney is a witness for the client. Davis v. Ross.
  Relevance to Action: Information from other individuals, subject to the same system or
treatment, may not be relevant, and therefore not discoverable, if the claim is not a class action.
Davis v. Ross. This rule is contrary to the Kozlowski case holding, in which the court permitted
discovery in a non-class action lawsuit for information about others subject to the same problem.
In Kozlowski, the court held that such evidence was relevant to the products liability action, and
therefore discoverable.
 Burden: Under Rule 34, once it is determined that items are within the scope of discovery, the
party from whom the discovery is sought has the burden of showing some sufficient reason as to
why the discovery should not be allowed. The fact that compliance with discovery would be
costly or time-consuming is generally insufficient to avoid discovery, but courts may take this
into consideration if the request is far too time-consuming or expensive. Kozlowski, McPeek v.
Ashcroft, Rule 26(b)(2)(C). After Kozlowski, Rule 34(b)(2)(E)(i) was amended to state that
parties must produce discovery in the “usual course of business” format or organize the material
in a manner that is most conducive to the request, regardless of cost.
 Cost: Before shifting the cost of discovery to the requesting party, courts will consider (1) value
of the information requested; (2) damages sought; and (3) the resources available to both the
parties. All parties must bear some discovery cost during the lawsuit, so this is generally
insufficient to cause to deny an otherwise permissible request for discovery from either party.
McPeek.
 Informal Discovery: Discovery may take place outside the formal discovery process by
informal discovery. This may be cheaper for the parties and an effective means of getting
additional information.
 Exemptions from Discovery: Information that is not discoverable includes privileged information.
 Work Product Immunity: Preparatory materials for trial are exempt from the discovery process
as they necessarily contain the thoughts and strategy of counsel. Hickman v. Taylor. Opposing
counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s
written statements, private memoranda, and personal recollections. Hickman v. Taylor.
Additionally, the work-product immunity exception does not apply to facts that are discoverable
merely because they were discussed with the attorney. The attorney’s work product only is
protected by this rule – not the facts themselves. Rule 26(b)(3)(A).
 Attorney-Client Privilege: Attorney-client privilege ensures total honesty between an attorney
and client. Conversations between clients and attorneys are protected and exempt from
discovery. This does not include cases where privilege is waived, or the client is threatening to
harm themselves or others. Of course, the facts themselves are discoverable, but not the personal
conversation between the attorney and client. The most common reason that attorney-client
privilege is waived is when the communications between attorney and client are the subject of
the litigation. In keeping with the rationale behind attorney-client privilege doctrine and the work
product rule, any employees within a company must come under the umbrella of that company’s
privilege, regardless of their rank. (See Upjohn v. United States).
 Doctor-Patient Privilege: Typically, discovery cannot reach into the realm of the patient’s
medical records. There are, however, exceptions, as when the plaintiff is seeking
emotional/mental anguish damages. Bringing the suit would be considered a waiver of the
privilege (Davis v. Ross).
 Sanctions: There are two primary ways to address discovery disputes in the wake of the elimination of
court-approval to discovery: (1) Request for protective order under Rule 26(c); or (2) Rule 37 sanctions.
 This rule does not speak to the state of mind of the party resisting discovery. Gross negligence is
sufficient to satisfy sanction standards, intentional wrongdoing is not required. Cine Forty-Second Street
Theater v. Allied Artists. The courts’ willingness to sanction attorneys oscillates. Litigants choose
counsel at their own peril, so the behavior of the attorney is generally attributed to the parties.
Summary Judgment:
 Summary Judgment: Rule 56 governs motions for summary judgment. Summary judgment permits a
party to get a judgment in their favor prior to trial, which differs from typical adjudication, in which a
trial occurs prior to judgment. Summary judgment helps intercept factually insufficient claims or
defenses before trial. For a motion for summary judgment to be granted, Rule 56(a) requires the moving
party to demonstrate (1) that there is no genuine dispute as to any material fact; and (2) that the movant
is entitled to judgment as a matter of law. A genuine dispute of material fact exists when a reasonable
jury could return a verdict in favor of the non-moving party. In ruling on a motion for summary
judgment, the court should construe all evidence in the light most favorable to the non-movant and
resolve all doubts in favor of the non-moving party. Adickes v. SH Kress. Rule 56(b) governs the timing
of when the motion can be filed, which is at until time until 30 days after the close of discovery. Rule
56(c) governs the procedure of summary judgment, stating that a party asserting that a fact cannot be or
is genuinely disputed must support the assertion by citing to particular parts, or show that the materials
cited to do not establish the absence or presence of a genuine dispute. Rule 56(d) governs when facts are
available to the non-movant, and Rule 56(e) governs the failure to properly support or address a fact.
 Differences in Summary Judgment and Motion to Dismiss: Although both summary
judgment and a motion to dismiss via 12(b)(6) bring the case to an end, the two procedural
devices are distinct. A Rule 12(b(6) motion to dismiss is due to a failure to state a claim. In this
case, the judge deciding the motion only looks at the pleadings or the complaint. Additionally,
only a defendant can bring a 12(b)(6) motion. Conversely, motions for summary judgment may
be brought by either party, though it is more frequently made by the defendant. In summary
judgment, the judge examines the evidence that would be brought a trial. A motion for summary
judgment typically occurs after discovery.
 Burdens of Proof Overview: Summary judgment casts the burden of production (burden of
going forward) upon the movant to make a prima facie (on first impression) showing that there is
no genuine dispute of material fact (BURDEN OF PRODUCTION DIFFERS DEPENDING ON
WHICH PARTY IS MOVING – SEE BELOW). Celotex. The burden of production must be
satisfied before the burden shifts to the opposing party. Celotex. The opposing party’s failure to
respond does not establish a right to judgment as a matter of law – the moving party has the
burden of showing an absence of genuine issue as to material fact. Adickes. If the movant meets
her burden of production, then the burden of production shifts to the non-movant. Celotex. If the
opposing party does nothing after the movant has met her burden of production, then summary
judgment is granted in favor of the moving party. To avoid summary judgment in this case, the
non-movant may not rely only on allegations or denials. The non-movant now has the burden of
production (WHICH MEANS DIFFERENT THINGS DEPENDING ON WHICH PARTY IS
THE NON-MOVANT – SEE BELOW) Celotex. If a motion for summary judgment is denied,
the case will go to trial where a fact-finder can settle the dispute of material fact.
 Burden of Production (burden of going forward) v. Burden of Persuasion (burden
of proof): The burden of production shifts between the movant and the non-movant
during the process of summary judgment. Regardless of who is the movant, however, the
burden of persuasion is ALWAYS on the plaintiff. The defendant never has the burden of
 persuasion in a case. The reason for this is because the entity bringing the suit should
have the burden to engage in the judicial process. The defendant in the judicial process is,
at least initially, a passive party.
 Plaintiff’s Burden of production: The plaintiff’s burden of production is to
support its motion with credible Rule 56(c) evidence affirmatively prove that the
elements of the case require judgment in their favor and that there is an absence of
material fact. Celotex.
 Defendant’s Burden of Production: The defendant’s burden of production is to
either (1) present affirmative evidence to negate any one or more of the elements
of the non-moving party’s claim; OR (2) demonstrate that the plaintiff’s evidence
in the record is insufficient to establish a claim, NOT by (a) making a conclusory
assertion in the motion that no such evidence exists in the record, but rather by (b)
affirmatively demonstrating the absence of evidence in the record. Celotex.
 Potential Exceptions: Complexity & State of Mind : There is no complexity exception for
motions for summary judgment. Even cases with quite complicated fact patterns can be litigated
via summary judgment. Poller. There is not technically a state of mind exception to Rule 56, but
it is less clear than the complexity issue. Some cases seem to suggest that when state of mind is
at issue, summary judgment shouldn’t be granted.
 Admissibility & Weighing Evidence: In deciding a motion for summary judgment, all evidence
is admissible, even if it is not in a form that would be admissible for trial, so long as the facts
themselves are admissible. Judges, however, are not supposed to weigh the evidence – “weighing
evidence” is a practice reserved from trial. The finder of fact is supposed to weigh the evidence.
 Witness Credibility: A motion for summary judgment cannot be granted where the case’s
resolution depends on the credibility given to a particular witness. Witness credibility is a
question of fact, and is therefore for the jury to resolve at trial. Arnstein v. Porter. A party may
not rely on mere speculation that a witness may change his testimony or that his demeanor will
convince the jury of the untruthfulness to escape summary judgment. Dyer v. MacDougall.
Seventh Amendment Right to A Jury Trial:
 Right to a Jury Trial, generally: The 7th Amendment states: “In suits at Common Law, where the
value of the controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved, and
no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according
to the rules of the common law.” Individuals who disagree with the right to a civil jury argue that (1) the
use of juries can dramatically delay the trial process, creating inefficiencies and injustice as people must
wait a long time for resolution; (2) juror incompetence is relatively common, as the general public is
unlikely to have a firm grasp on complex legal system issues and people are less engaged than they were
at the impetus of this practice; and (3) juror prejudice is also common, especially in an environment
where information is so widely available and people are more likely to have strong opinions around a
multitude of issues. Courts must balance the pros and cons of jury trial and make decisions that comport
with the Constitution while also promoting justice. Roughly speaking, there are two parts to the 7th
Amendment: (1) whether there is a right to a jury trial; and (2) even when there is a right to a jury trial,
how does the 7th Amendment limit a trial court’s ability to remove a case from the jury by way of
motions during the case itself (i.e., directed verdict, JNOV, and motion for a new trial).
 Getting a Jury Trial: Rule 38(a) provides that the right of trial by jury is preserved to the parties
inviolate. Generally, an action at law will be tried on demand to a jury, but an action in equity will not.
If a new cause of action that was unknown at common law is created, the court must look to the remedy
sought, whether legal or equitable, and will generally allow a jury if the relief sought is legal rather than
equitable. The 7th Amendment is a floor – not a ceiling. Courts can grant jury trials that are not
constitutionally guaranteed. Rule 38(b) requires that parties demand a jury trial, even where it is
constitutionally guaranteed. Rule 38(d) holds that failure to request a jury trial do will result in a waiver
of that right. Additionally, while there is a constitutional right to a jury trial, but there is not a
constitutional right to not have a jury trial. Beacon Theaters v. Westover.
 Legal & Equitable Claims: If an action involves both legal and equitable claims, the jury normally
determines the legal claims first, then the judge determines the equitable claims. The judge is still bound
by the jury’s findings on the related legal claims. Beacon Theaters v. Westover. Even if both equitable
and legal claims are joined in one case and the equitable claims predominate, there is still a right to a
jury trial. Dairy Queen v. Wood. The “clean-up doctrine” or “incidental doctrine” once held that in such
a case where equitable issues dominated the legal issues, the legal issues didn’t require a jury. The
clean-up doctrine was rejected in Dairy Queen v. Wood.
 Determining Legal v. Equitable Claims: Courts must look at the type of claim and relief
sought to determine whether it is legal or equitable in nature, and thus to determine whether a
right to a jury trial is constitutionally mandated. The language of the complaint does not
determine whether the complaint is one of equity or law – rather, the court looks to the actual
nature of the relief desired. Dairy Queen v. Wood. Historically, the legal or equitable nature of a
particular cause of action is determined by considering several factors Ross v. Bernard). Curtis v.
Loether created a two-step test to determine whether something is an equitable claim or a legal
claim: (1) first, courts should look to the history of the cause of action and how it would have
been classified at the inception of the 7th Amendment, also known as the historical test; and (2)
courts should look to the nature of the relief sought.
 (1) Historical Test: First, courts look to the pre-merger custom regarding legal versus
equitable relief. This refers to the historical test, or how this cause of action would have
been characterized prior to the joining of law and equity courts. This test may be tedious
and difficult to apply. Most authorities agree that the first part of the 7th Amendment
 serves as a “historical test” due to the wording of the Amendment and the inclusion of the
term “preserved.” The historical test of the 7th Amendment is meant to preserve the right
to a jury trial for litigation that would have warranted a jury trial at the inception of the
7th Amendment in 1791. In 1791, courts were divided into courts of law and courts of
equity. Courts of law warranted jury trials, while courts of equity did not. Claims that are
more similarly situated to those historical divisions may be permitted or have limited jury
trials based on the test. When a cause of action is before the court that did not exist prior
to the equity and law merger, courts will analogize the cause of action to a similar cause
of action that was in existence at that time. Some scholars argue that, if a cause of action
did not exist at the time of the merger, it is automatically barred from the 7th
Amendment, regardless of the similarities, but this approach has been largely rejected.
Now, any action for damages in federal courts is eligible for a jury trial upon demand by
one of the parties, regardless of whether that particular right of action was available at the
time of the merger. Curtis v. Loether. However, if the statute governing the issue
explicitly states otherwise, or legislative history strongly indicates others, the court may
contradict. Ultimately, courts realize that the 7th Amendment’s reference to “common
law” was meant to differentiate these causes of action from suits in equity, admiralty, or
maritime law, and not to preclude statutorily created private rights of action from access
to the jury. The 7th Amendment does not preclude Congress from assigning adjudication
of an issue to an administrative body. This was never intended to establish the jury as the
sole fact-finding body in civil cases. NLRB v. Jones.
 (2) Nature of the Relief Sought: Courts will consider whether the party is seeking
equitable relief, such as an injunction, versus legal relief, such as monetary damages. The
relief sought by the petitioning party is the most critical aspect courts should consider in
determining whether a party requesting a jury trial is entitled to it under the 7th
Amendment. Tull v. United States.
 Equitable Claims: Equitable claims are used when the law is inadequate. Jury
trial is impracticable for this type of relief and there’s no constitutional right to a
jury trial for equitable claims. It is possible to have a jury trial for equitable
claims, but typically individuals seeking equitable relief want relief fast due to
irreparable harm suffered.
 Legal Claims: When the complaint requests money, the issue is one of law
almost without exception. However, money relief is not automatically equivalent
to damages or legal relief. Some money relief may be deemed equitable.
Teamsters Local v. Terry. The 7th Amendment right to jury trial has no
application where recovery of money damages is incidental to equitable relief
even though damages might have been recovered in an action at law. NLRB v.
Jones.
 (3) Practical Ability and Limitations of Juries / Public Policy: In addition to the two-
part Loether test, courts will consider practicality and public policy when determining
whether there is a right to a jury. There is some speculation that Loether was decided
because a jury would have been biased against an African American plaintiff in a suit
regarding racially restrictive covenants, although this was not explicitly stated in the
opinion.
 Complex Litigation: Extremely complex litigation may sometimes be deemed sufficient cause to
necessitate a non-jury trial, as juries of laymen are unlikely to be able to navigate complex legal issues.
In those circumstances, some courts have ruled that Due Process requires a non-jury trial. Ross v.
Bernhard, Beacon, Dairy Queen. Whether a complexity exception truly exists is a subject for debate.
Some believe that some proceedings are too complicated to adequately explain the issues of law and fact
to a jury. Others, however, believe that the job of an attorney is to make the information accessible. It
has been argued that the use of a jury in complex litigation violates the Fifth Amendment right to due
process.
 Special Juries: Special juries are juries that are not entirely random, and are selected from a
group based on education or experience. There is little case law on special juries, but this could
be a way to accommodate for complex litigation that still require jury trials.
 Statutory Creation: The right to a jury trial can also be statutorily created and mandated. The right
does not have to come only from the Constitution. If the statute specifically states that a right to a jury
trial has been created automatically, there is no need to apply the Loether test or the public policy
arguments.
 Size of Jury: Rule 48(a) governs the number of jurors, which requires a minimum of 6 jurors and a
maximum of 12 jurors. In 1791, all juries were 12 members. A jury of less than 12 members does not
violate the 7th Amendment. The 7th Amendment does not require a jury of a particular size. Colgrove v.
Battin. This also is the subject of some controversy, however. There is a concern that smaller juries will
represent fewer diverse opinions. Additionally, dissenters in a jury trial of only 6 are likely to be few and
may abandon their position more quickly in favor of the jury trial. If attorneys suspect that their chances
are significantly impaired by a jury trial, they may waive their client’s right to a jury trial altogether,
damaging the purpose of the 7th Amendment and the function of the jury trial. There is no explicit,
determined minimum amount for jury size. Though 6 member juries are allowed, case law hasn’t
determined whether fewer jury members may be permissible.
 Unanimity: The federal rule requires unanimity; the Ohio Rule permits verdicts on 8-0; 7-1; or 6-2
votes. The federal system and almost all states still require unanimity in criminal jury trials.
 Jury selection: Litigants are entitled to fair and impartial jurors representing a cross-section of the
community. The current system restricts both the opportunity for individuals to participate as a jury
member, and it makes it easy for individuals to opt out of jury service, thus limiting the diversity of jury
trial members. The present system restricts jury members to only those individuals who are registered to
vote. There are many individuals in the United States who cannot vote, or have not registered. This
typically eliminates individuals who are socioeconomically disadvantaged. Additionally, permitting easy
“opt-outs” permits individuals selected for jury service to choose work or home obligations over the
jury, thus limiting juror selection to individuals with enough financial freedom and personal freedom to
serve.
 Excused “for cause”: Lawyers and judges, after the initial round of jury selection, will address
whether any of the jurors should be excused “for cause.” In general, the reasons for dismissing
jurors “for cause” relates to the jurors’ ability to be fair and impartial. A juror’s dismissal could
be in relation to his prior experiences or personal relationships or personal commitments.
Lawyers are generally not exempt from serving on the jury. An excused juror will be replaced by
one on the panel, and the new one will be screened to determine if they should be excused for
cause.
 Peremptory Challenges: If there is no ground for excusing the jurors for cause, each side of the
lawsuit still has three peremptory challenges (at least in federal courts). Traditionally, these
 challenges permit parties to excuse jurors for any reason whatsoever. The ability to use
peremptory challenges in a discriminatory manner is extremely limited. “Untrammeled use of
peremptory challenges is a thing of the past.” For example, all men cannot be excluded from a
jury in a paternity case because that is discriminatory based on gender. (J.E.B). Additionally,
race-based peremptory challenges violate the equal protection clause. (Edmonson).

Judicial Control of the Verdict:

 Judicial Control of the Verdict, Generally : Generally, a jury is only empaneled to resolve disputed
facts, so when it is determined that no such facts exist, the judge may grant one of the following
motions: (1) summary judgment, which occurs before or during motions; (2) directed verdict, which
follows arguments, before jury empanelment; (3) judgment notwithstanding the verdict/JNOV, which
occurs after the jury has returned a verdict, and is asking the judge to reverse or overturn it; or (4)
judgment as a matter of law, which was created to combine concepts of JNOV and DV and streamline
the process into one easily navigable system. The change is based more in words than in function,
however, and many jurisdictions still refer to DV and JNOV as distinct concepts.
 Judgment as a Matter of Law: Judgment as a matter of law is a somewhat drastic form of judicial
control that was created in 1991. Judgment as a matter of law is provided for by Rule 50(a) and serves to
combine the concepts of DV and JNOV. Under Rule 50, once a party has been fully heard on an issue at
a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a
party if the court finds that there is insufficient evidence for a jury to reasonably find for that party. This
may also be entered by the court sua sponte (of its own accord) after the party has been fully heard on an
issue, but before the case has been submitted to a jury. A motion for a judgment as a matter of law may
be made by either party at the close of her opponent’s evidence. For the motion to be granted, the court
must find either (1) that there is insufficient evidence to go to the jury OR (2) that the evidence is so
compelling that only one result could follow. This motion functions similarly to a delayed summary
judgment motion, in that it determines that there are no genuine issues of fact for the jury.
 Standard of Review: The court must view the evidence in the light most favorable to the
opposing party, and draw all reasonable inferences from the evidence in favor of the opposing
party. The court may not consider a witness’s credibility or evaluate the weight of the evidence.
The court must disregard all the evidence favorable to the moving party that a jury would not be
required to believe. If a reasonable person could draw different inferences from the facts, then
the issue is for the jury to decide.
 Constitutionality of DV/JNOV/JML: Judgment as a matter of law, or a directed verdict, or a
judgment notwithstanding verdict, does not violate the 7th Amendment. The 7th Amendment
was not intended to permit all cases to go to trial regardless of their merit. Galloway v. United
States. At common law, there was no directed verdict, but there was a demurrer to the evidence
and a motion for a new trial, both of which are similar to the JML process and prove the
credibility of circumventing the jury where there are no genuine disputes of material fact. Rule
50(a)(2) and Rule 50(b) support the constitutionality of this practice.
 Substantial Evidence Rule Rule 50(a)(1): Even where some facts are in dispute, or are
disputable, courts must draw a line where the jury would have to make major inferences or
speculations for the verdict to come out for the non-moving party. In other words, even where
facts are disputable, the court may still grant a DV/JNOV/JML where the jury would have to
make large logical leaps to find in favor of the non-moving party. In some cases, even where all
evidence is accepted as true, no reasonable jury could find for the non-moving party, so the
 DV/JNOV/JML is employed. The existence, according to the majority in Galloway, of just any
favorable evidence, no matter how meager, will not protect litigants from JML. Rule 50(a)(1).
This is usually called the substantial evidence test. Evidence is substantial in this sense when it
can provide a reasonable basis for a juror to find for the party opposing the JML. Some people
reject this standard and argue that the DV/JNOV/JML device should only be employed where
there is NO evidence whatsoever of a genuine dispute of material fact. (Galloway, Black
dissenting).
 Conflicting Testimony: Where there is conflict ing testimony between the parties, the court or
judge should not decide the credibility of the witnesses where both could be reasonably believed.
The jury is the decision-maker on witness credibility. Guenther v. Armstrong Rubber.
 Probabilistic Evidence: The mere statistical probability of a fact is not sufficient to sustain a
verdict against one party or the other. (Guenther v. Armstrong Rubber). This is disputed, and
probabilistic evidence is not always rejected by courts. Kamosky and Kramer. “Reaching a
conclusion involves putting doubt aside. The difficulty of doing so will vary with the intensity of
the doubt, the degree to which we are concerned about making a mistake, and the rationalizations
we have to help us conclude.” Nesson (quote from book or law review article). “Generally, the
test of reasonableness resolves into a question of probability: is the inferred occurrence more
probable than not, or is it merely possible?” Kramer. There are three types of causation issues
that the plaintiff might wish to, or be forced to, prove by probabilistic evidence: (1) did the
defendant manufacture the product in question? (2) Does the product cause the type of injury
suffered by the plaintiff? (general causation); and (3) did the product cause this plaintiff’s injury
(or was it from another source?) (specific causation).
 Motion for a New Trial: Under Rule 59, the court may, on motion, grant a new trial on all issues or
with respect to certain issues or parties. This motion was available in 1791 and is therefore consistent
with the constitutional, 7th Amendment guarantee of a jury trial. Additionally, this motion grants a new
jury trial, not a circumvention of the jury trial. Trial judges have the power to set aside verdicts and
grant new trials. Rule 59 does not specifically list the grounds that will justify a new trial, but it does
state that (1) for actions that have been tried by a jury, a new trial may be granted for any of the reasons
for which a new trial has been traditionally granted in an action at law in federal court; or (2) after a
non-jury trial, for any reason for which a rehearing has been granted in a suit in equity in federal court.
 Timing: Rule 59(b) requires that a motion for a new trial be filed no later than 28 days after the
entry of judgment.
 Reasons for a New Trial: In general, whether a new trial is warranted is within the discretion of
the trial court. Some of the reasons that have been held to justify a new trial include: (1) error at
trial that renders the judgment unfair; (2) newly discovered evidence that existed at the time of
trial was excusably overlooked and would likely have altered the outcomes of the trial; (3)
prejudicial misconduct of counsel, a party, the judge, or a juror; (4) the verdict is against the
clear weight of the evidence to such an extent that it resulted in a clear miscarriage of justice; (5)
the verdict is based on false evidence such that a new trial is necessary to prevent injustice; or (6)
the verdict is excessive or inadequate.
 Appropriateness of New Trial: So long as a reasonable basis existed for the jury’s verdict, an
appellate court will not disturb the district court’s decision to deny a motion for a new trial.
(Ahern v. Scholz). Basically, a new trial motion should only be granted when the jury’s verdict
was against the “clear weight” of the evidence. For the judge to set aside the verdict and order a
 new trial just because she would have decided the case differently would undercut the jury as the
fact-finder.
 Differences in JML and Motion for New Trial : The JML (or DV/JNOV) circumvents the
jury’s decision completely where there is insufficient evidence to reasonably find for one of the
parties. The motion for a new trial, however, applies when the jury’s decision was against the
clear weight of the evidence. In a motion for a new trial, the jury’s role is not circumvented.
Rather, if the court believes that the jury’s verdict was somehow wrong, or against the clear
weight of the evidence, or for any other reason permitted, the court can permit a new trial with a
new jury. In a JML motion, there is not a new trial with a new jury, but rather a verdict handed to
the parties without a jury altogether. For this reason, the standard for a motion for a new trial is
less stringent than that of a JML motion because the 7th Amendment concerns are less weighty
in a situation where the granting of the motion will result in another jury trial.
 Bad Lawyering: Usually, a party chooses her counsel at her own peril. However, the court in
Vance permitted a new trial because the plaintiff’s lawyer was “completely unorganized and
ineffective.” The court reasoned that the judge has the affirmative duty to ensure the litigants
have a full and complete opportunity to present their case to the trier of fact for determination.
 Motion for Relief from Judgment: Rule 60(b) lays out the grounds for relief from a final judgment,
order, or proceeding. This rule only applies to final judgment and is a difficult form of relief to obtain
because finality helps to keep societal peace and protects litigants from harassment. On the other hand,
the rigidity of absolute finality could be intolerable. Motions for relief from final judgment must be
made within a reasonable time. The language is written quite broadly, but it is construed narrowly by
court. If the courts did not narrowly tailor this rule, the losing litigants would always file for this motion.
 Reasons for Relief from Judgment : The court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons, according to Rule 60(b):
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively, is no longer equitable;
or (6) any other reason that justifies relief. The standard for obtaining a relief from judgment
under reason (1) is very strict. Shepard v. Darrah. Bad lawyering will ordinarily not provide a
basis for granting relief on this ground because otherwise, this rule would be overwhelmed by
accusations of poor lawyering. In rare instances, there could be a use of this rule that includes
poor lawyering.
 Change in the Law: Doe v. Trumbull held that even a change in the law does not justify a
motion for relief from judgment. Policy considerations and the need for finality outweigh an
individual’s right to justice and fairness. Changes in case law cannot, in the interest of justice, re-
open every prior case, so courts will lean toward enforcing judgments.
 Nature of the Verdict: There are three types of verdicts that the jury can use. (1) Rule 49(a) governs
special verdicts; (2) Rule 49(b) governs general verdicts with questions that the jury must answer; and
(3) general verdicts.
 General Verdict: A general verdict is the usual form of verdict when a jury’s decision in a civil
case is entirely in favor of one party or the other and supplies no explanation as to why the jury
decided as it did. General verdicts fail to illuminate the jurors’ decision-making process. This
makes it difficult to preserve the work of the jury if problems arise with the case on appeal. The
 general form also makes it easy for jurors to ignore constraints and admonitions in the charge.
The general verdict may encourage jury nullification because juries can hide behind their verdict
without demonstrating their reasoning.
 Special Verdict: A special verdict is a form of a special written finding on each individual issue
of fact. A court will submit written questions to the jury correlating to each ultimate fact of the
case and will ask the jury to make a finding on each fact separately. Rule 49(a). The judge will
construct the equivalent of a general verdict from the answers of the special verdict. The nature
of the special verdict sometimes leads to apparent inconsistencies within the verdict (i.e., where
two facts are decided in seemingly contradictory ways). Parties are not required by Rule 49(a) to
object to those inconsistences a trial to preserve the right to challenge those inconsistencies in a
subsequent motion or appeal. Whitlock v. Jackson. Where the jury’s apparent inconsistencies can
be reasonably reconciled, the court will generally decline to conduct any further inquiry. This
will only be granted review where there is a clear miscarriage of justice. Whitlock. Rule 49(a) is
not waived by a failure to bring up immediately
 Modified General Verdict: Rule 49(b) allows the court to submit to the jury a general verdict
together with written questions (interrogatories) on one or more issues of fact, all of which are to
be answered. Various steps are to be taken by the judge if the jury’s answers to the general
verdict and the one or more questions are not consistent. Rule 49(b) is waived by a failure to
bring up immediately.
 Criticisms of the Non-General Verdict:
 Criticism of Modified General Verdict: Rule 49(b) has been the subject of heavy
criticism. It seeks to mold a general verdict and special answers with the high likelihood
of conflict which extinguishes both. Rule 49(a), however, melds the general charge with
the special answers to specific controlling issues.
 Criticisms of Special & Modified General: General verdicts with written questions and
special verdicts are more common than plain general verdicts, even in very simple cases.
This may reflect a fundamental distrust of the jury system. On the one hand, this is
“another means utilized by courts to weaken the constitutional power of juries and to vest
judges with more power to decide cases according to their own judgments.” (Justices
Douglas and Black). On the other hand, however, a special verdict helps do away with
some of the most objectionable features of trial by jury. The division between judge and
jury is utilized, with the judge deciding matters of law and the jury deciding matters of
facts.
 Juror Impeachment of the Verdict:
 Common Law Rule: The common-law rule is that jurors may not testify to misconduct on their
part to impeach their own verdicts. (Delaval Rule). This is based on the idea that witnesses may
not be heard to allege their own turpitude (wickedness). This is meant to encourage the stability
of verdicts, and to prevent jurors from being harassed by losing parties to impeach their verdict.
Sopp v. Smith. In Sopp, the court declined to admit two juror affidavits relating to observations
they made upon independently visiting the scene of an automobile accident. The losing party
argued that this evidence is sufficient to impeach the jury, as jurors are not permitted to do
independent research. This rule is intended to ensure that all jurors are getting the same story and
that the court can control the quality of the evidence being used to make the judgments. The
court disagreed with the losing party’s arguments and did not permit the admission of the
affidavits.
  Newer Rule: Sopp was overturned by People v. Hutchinson, where the court permitted the
affidavit of a juror relating to the remarks and tone of the bailiff to be admitted into evidence
toward impeachment when the bailiff was accused of pressuring the jury to decide quickly.
People v. Hutchinson held that affidavits of jurors may be used to impeach a verdict if they prove
objective facts. Hutchison and later cases use a two-step approach: (1) is the post-verdict juror
testimony admissible? (2) if it is admissible, based on that testimony (and perhaps the testimony
from others involved) did the juror or the jury as a whole engage in improper behavior?
 Iowa Rule / Federal Rule of Evidence 606(b) : The Iowa rule is based upon the distinction
between extrinsic or over acts which may be corroborated or disproved, such as access to
improper matter or an illegal method of reaching a verdict, and intrinsic matters which are
known only to the individual juror, such as misunderstanding or prejudice. Because these
intrinsic matters are not readily capable of being either corroborated or disproved, they should be
excluded.
Appeals:
 Appellate Review, generally: Appeal is the submission of a lower court’s decision of a matter to the
review of a higher court. One purpose of appeal is to ensure the correctness of lower court decisions.
Another purpose of appeal is institutional review to assure uniformity in the application of law and to
furnish guidance to the lower courts. Both purposes may seem to contradict the desire for efficiency and
finality in judgments, so appeals must be subject to several procedures for checks and balances to ensure
that the balance between the competing concerns is fairly maintained. It is important for the court
system to provide checks for its own accuracy and hubris. Additionally, simply because a relatively
small percentage of cases are appealed, and most of those judgments are affirmed, does not contradict
the importance of the appellate process. Those that are not affirmed may set different precedent for those
that are, or may reduce the need for appeals by confirming or clarifying the law.
 Appeal as of Right: Federal courts (and many state jurisdictions) grant an appeal as of right”
only to an intermediate appellate court, with a further appeal to the highest court discretionary
with that court. The Supreme Court has declined to find that a right to appeal is an element of
due process guaranteed by the Fourteenth Amendment, though some state constitutions do assure
a constitutional right to appeal from state court judgments.
 Increased Caseloads: To deal with increased appellate caseloads, federal and state appellate
courts have taken various steps, such as relying on law clerks and unpublished opinions. This is
controversial because the unpublished opinions are given less consideration than the published
ones, and attorneys insisted that appellate courts should treat cases alike.
 Final Judgment versus Interlocutory Appeal: Whether a matter can be appealed poses a choice
between (1) an appeal of the final judgment at the close of the litigation; and (2) an interlocutory
appeal of a decision made by the court prior to the entry of the final judgment. Interlocutory appeals
may lead to unnecessary extra appeals if the trial judge made the correct decision but is questioned by
the losing party. However, not permitting interlocutory appeals may lead to unnecessary or
unnecessarily long trials if the judge has ruled incorrectly.
 Interlocutory Appeals: An interlocutory appeal is an appeal of a decision made by the court
prior to the entry of the final judgment. Interlocutory appeals may lead to unnecessary extra
appeals if the trial judge made the correct decision but is questioned by the losing party.
However, not permitting interlocutory appeals may lead to unnecessary or unnecessarily long
trials if the judge has ruled incorrectly. As a general rule, courts tend to avoid interlocutory
 appeals, as the rate of reversal indicates that the trial judges are generally correct. There are,
however, exceptions. Courts will consider permitting an interlocutory appeal where: (1) the costs
of error are particularly large and irreversible; (2) the alleged errors involve unresolved questions
of law increasing the likelihood of error by the trial judge; and (3) where issues presented that, as
a practical matter, will be lost to a party before appeal from a final judgment can be taken.
 Final Judgment Rule: Generally, 28 USC §1291 grants federal courts of appeals jurisdiction on
appeal from all final decisions of the lower courts. Courts have different interpretations,
applications, and exceptions, but the Supreme Court has defined a final decision as a judgment
that ends the litigation on the merits and leaves nothing for the court to do but execute the
judgment. (For example, a decision of liability, but not of all damages, is interlocutory, but a
decision to grant a permanent injunction is final if no other remedy is sought, even though the
court retains jurisdiction to ensure compliance.)
 Collateral Order Exception: So long as the matter remains open, unfinished, or
inconclusive, there may be no intrusion by appeal. However, an individual order may be
appealable where the trial court’s ruling was final as to the subject it addressed, did not
touch on the merits of the cause of action, and would therefore not be merged into the
final judgment, i.e., it is “collateral to the cause of action and may be appealed as an
independent final disposition. (See Cohen v. Beneficial Industrial Loan). The Court
construed the rule to permit immediate appeal and review of interlocutory orders that are
incidental to the merits and that cannot be effectively preserved for review on appeal
from a final judgment. To qualify for the collateral order exception, the Supreme Court
has imposed three strict requirements. The order must: (1) finally and conclusively
determine the disputed question; (2) resolve an important issue completely collateral to
the merits; and (3) be effectively unreviewable on appeal from the final judgment, so
“opportunity for meaningful review will perish unless immediate appeal is permitted.”
 Class Certification: A district court’s decision to decertify or refusing to certify a
class action is not a “final decision” that may be independently appealed prior to
final judgment. (Coopers & Lybrand v. Livesay). This is also not completely
collateral, since Rule 23’s certification provisions expressly require the court to
identify common questions of law or fact and make other determinations that
inevitably touch on the merits. Some argue that denial of class certification
presents a “death knell” for the litigation as members are unlikely to pursue suits
individually. But this argument is often rejected as members are choosing to not
move forward with the suit. However, in situations where members would truly
be precluded from moving forward, class certification may be appealable.
 Disclosure Orders: Disclosure orders that compromise attorney-client privilege
are not immediately appealable under the collateral order doctrine. Mohawk.
Litigants argue, once privileged information is released, harm is irreparable and
cannot be solved by a post-trial appeal. However, this is not the case in practice,
as cases can be retried without use of the privileged information. This standard
will not apply where privileged information is also a trade secret which may
actually cause irreparable damage to a litigant’s business interests.
 Practicality over Technicality: Courts have given § 1291 a practical, rather than
technical, construction. If the three-part test is satisfied as a practical matter, then,
 even if the “final decision” isn’t technically satisfied, the decision may be
rendered final. Mohawk.
 Exceptions to the Final Judgment Rule:
 §1292(b): 1292(b) controls discretionary interlocutory appeal and states that a
district judge must determine that an interlocutory order involves a controlling
issue of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate
termination of the litigation. The court in Ahrenholz v. Board of Trustees
summarized this rule as follows: (1) the interlocutory presents questions of law
(not fact); (2) that question is controlling (more than just a ruling on the
substantive law applicable to the case); (3) the question is also contestable (not
readily decided); and (4) resolution of the issue promises to speed up the
litigation. It is also required that such an order be approved by the appellate court
and the district court from which the issue arose. Few courts approve this request.
Interlocutory appeals must be submitted to the court in a timely manner (as soon
as practicable). Although this is not mentioned in the statute, courts will deny
requests for interlocutory appeal if submitted after an unjustifiable/unnecessary
delay. The Supreme Court has frequently referred in the abstract to this rule as an
appropriate, Congressionally-sanctioned exception to the final judgment rule.
Nonetheless, many lower courts have limited the use of this rule to big, or
particularly complex, cases (Solimine cited himself). This is because there is a
fear that relaxing the use of the statute will open the floodgates of appeals, which
Solimine believes to be exaggerated.
 Mandamus: A few trial court errors may be so costly, either to the parties or to
the integrity of the judicial system, that a cost analysis favors immediate appeal
even without irreparable harm. Most jurisdictions historically provided
interlocutory appeal in these rare cases by a petition for a writ of mandamus,
which would order the trial judge to issue an order or fulfill a mandatory duty.
Under mandamus review, a court of appeals can immediately review an order that
is an abuse of judicial authority, such as an order beyond the trial court’s
jurisdiction, or an order that violates a mandatory duty of the trial court, but such
review does not extend to all orders that constitute an error of law. This is an
extremely limited doctrine. Mandamus is not a punitive remedy and can act as an
abdication of the supervisory function of the court if not managed appropriately.
(Will v. United States).
 Class Action Litigation: Class action certification decisions are not final
decisions that end the case on the merits. If the district court grants certification,
the case will proceed to trial and review of the certification decision could, at least
in some acses, follow the trial court’s disposition. If the district court denies
certification, the claims of the individual named plaintiffs remain pending. In
many cases involving claims of modest size, individual plaintiffs may choose not
to pursue the litigation other than through a class action. For modest claims, then,
the denial of certification was sometimes seen as the “death knell” of the action
and regarded as appealable under the practical finality doctrine. (Death knell
doctrine: Where the effect of a district court’s order, if not reviewed, is the death
 knell of the action, review should be allowed.) Under Rule 23(f), a court of
appeals may permit an appeal from an order granting or denying class action
certification if a petition for permission to appeal is filed with the circuit clerk
within 14 days after the order is entered. The court of appeals has discretion to
deny the appeal. If an appeal is permitted, it will not stay proceedings in the
district court unless the district court or the court of appeals so orders. This does
not explicitly overrule Coopers & Lybrand, but it does make it possible for
appellate courts to review class certifications on a discretionary basis, taking the
death knell doctrine into account.
 Appellate Review of Judicial Findings:
o Facts: Under Rule 52(a), a district court finding of fact may not be set aside unless it is clearly
erroneous. Deference must be given to the district court on any evaluation of the credibility of
witnesses, as they were present for the witness testimony and appellate judges were not. A
finding is clearly erroneous when, although there is evidence to support it, the court of appeals,
based on the entirety of the evidence, is left with the definite and firm conviction that a mistake
has been committed. Bose Corporation v. Consumers Union of United States. A factual finding
by the jury that is reasonable and supported by sufficient evidence must be affirmed even if it is
against the weight of the evidence. A district court, however, can grant a motion for a new trial if
it believes the verdict is against the weight of the evidence.
o Law: In general, appellate review of legal rulings is de novo. The appellate court will use the
trial court’s record of facts, but will review the evidence and law without deference to the trial
court’s rulings, allowing the appellate court to reach its own, independent conclusions on the
issue.
Preclusion Doctrines: Res Judicata

 Preclusion, Generally: Putting an end to litigation by according finality to judgments is a central

objective of a modern system of civil procedure. Courts have long struggled to achieve finality without
depriving parties of an opportunity to pursue in a later suit aspects of the matter that they could not
reasonably have litigated in the first suit. Preclusion doctrines are common law doctrines meant to
conserve judicial economy by preventing the needless re-litigation of cases. Additionally, it prevents
financially dominant parties from wearing out the other party’s financial resources by constant litigation.
Furthermore, losing parties could refuse to comply with judgment until the case is re-litigated.
Preclusion doctrines also force parties to invest adequately in, and prepare appropriately for, the first
suit. There are two categories of preclusion doctrines: (1) res judicata (claim preclusion) and (2)
collateral estoppel (issue preclusion). Res judicata operates to preclude re-litigation of the claim
without regard to what issues were litigated in the first suit, while the latter only precludes re-litigation
of those issues that were actually litigated and necessarily determined in the first suit.
 Res Judicata (Claim Preclusion): Res judicata is sometimes loosely used to refer to the totality
of preclusion doctrines. As a technical matter, however, it refers more appropriately to the
prohibition on re-litigating a claim that has already been litigated and gone to judgment. For this
reason, res judicata is also often referred to as “claim preclusion.” When a party obtains a final
personal judgment in its favor, its claim is extinguished and “merged” in the judgement, thus
precluding further litigation on the same claim. Likewise, when a party suffers a judgment
against it, the claim is also extinguished and the party is “barred” by the judgment from re-
litigating the same claim. Merger and bar only apply when the (1) second action is based on the
same claim or cause of action between the same parties or those in privity with them; and (2)
when the determination of the first action was “on the merits.” For res judicata to apply, the
earlier suit must have included a final judgment on the merits, covered sufficiently identical
claims, and involved sufficiently identical parties.
 On the Merits: A prior judgment is valid if the court had both a personal and subject
matter jurisdiction, and the defendant had a property notice and opportunity to be heard.
The judgment is final when there is nothing further for the court to do but to order the
entry of judgment. Originally, “on the merits” meant that the decision had to be based on
the merits of the case, and not simply a motion to dismiss, etc. This is no longer the case.
A claim “on the merits” (as opposed to technical grounds) does not actually have to be
raised in the earlier action to be barred in the latter action. Rule against splitting the
Cause of Action: If the claim or defense could have been raised in the earlier action, it
will be precluded in the later action. Manego v. Orleans Board of Trade. This is a fairly
modern interpretation, which hinges the decision on the “transaction test” which asks
whether the cause of action arose out of the same transaction. This broke from the
traditional approach, which focused more on a “different rights and wrongs” test. Rush v.
City of Maple Heights. Judgments on the merits include judgments entered after a full
trial, summary judgment, judgment as a matter of law, and default judgment where the
court has jurisdiction over the subject matter and personal jurisdiction over the parties.
 Counterclaims: If a compulsory counterclaim is not brought in the first case, then
it is lost. Rule 13 (for counterclaims) does not have an enforcement mechanism. It
is enforced via res judicata, which prevents compulsory counterclaims from being
brought in a second action. A permissive counterclaim can be lost if not brought
 in the first suit if the relationship between the counterclaim and the plaintiff’s
claim is such that the successful prosecution of the second action would nullify
the initial judgment or impair the right established by the initial action.
 12(b)(6) Failure to State a Claim: The courts have the authority to grant
amendments or dismiss without prejudice if it is not meant to be viewed as
dismissed on the merits for the purposes of res judicata. The choice to do
otherwise reflects the lower court’s intention for the parties to be precluded from
future suits on this claim. (See Rinehart v. Locke) Rule 41(b) states that a
dismissal of a complaint under Rule 12(b)(6) is a ruling on the merits. Therefore,
res judicata applies to dismissal. Exceptions to 41(b): other than a dismissal for
lack of jurisdiction, for improper venue, or for failure to join a party under Rule
19, a dismissal is an adjudication on the merits.
 Voluntary Dismissal Without Prejudice: Voluntary dismissal without prejudice
expressly reserves the right to sue again on the same claim in the same court so
long as the statute of limitations has not expired. Unless the notice of dismissal
states otherwise, a voluntary dismissal is presumed to be without prejudice. Rule
41(a)(1)(B).
 Voluntary Dismissal With Prejudice: treated as a judgment on the merits and
will have a preclusive effect in the court that issued the order of dismissal. A
dismissal on the merits under Rule 41(b) will bar a plaintiff from re-filing the
claim only in the same federal court, not in state court.
 Involuntary Dismissal: Involuntary dismissal: unless otherwise provided by the
order of dismissal (if on non-jurisdictional grounds) will constitute adjudication
on the merits. Rule 41(b). While such an involuntary dismissal will bar re-filing
of the claim in the same federal court, it does not preclude re-filing of the claim in
state court.
 Dismissal for lack of jurisdiction: dismissal on jurisdictional grounds, for lack
of venue, or failure to join a party under Rule 19, is without prejudice, because a
court that has no jurisdiction cannot adjudicate a matter on the merits. Rule 41(b).
 Sufficiently Identical Claims: The original and later-filed claims must be sufficiently
identical to be barred under claim preclusion. Federal courts apply a transactional
approach under which they bar a subsequent claim with respect to all or any part of the
transaction, or a series of connected transactions, out of which the action arose. Over
time, courts have taken on a broader definition of what qualifies as a cause of action for
the purposes of preclusion. Manego v. Orleans Board of Trade. The factors to consider
for sufficiently identical claims are: (1) Whether the facts are related in time, space,
origin, or motivation; (2) Whether the facts form a convenient trial unit; and (3) Whether
treating the facts as a unit conforms to the parties’ expectations. Manego v. Orleans
Board of Trade.
 Sufficiently Identical Parties: For claim preclusions to apply, the claimant and
defendant must be the same, and in the same roles, in both the original action and the
subsequently filed action. Claim preclusion is limited to the parties, or their privies,
therefore, a similar action by a different party would not necessarily be precluded.
 Exceptions to the Rule Against Splitting a Cause of Action: Even where members of a
class break away from the larger group and strike out on their own, they may be bound by
 rulings that bar the rest of the class from bringing additional suits. Federated Department
Stores v. Moitie. This reflects the purpose of res judicata, which is intended to reduce
excessive, unnecessary litigation.
 Fairness Exception: There is no “fairness exception” to res judicata. In Moitie, the Court
held that a change in law is not a sufficient enough reason to overhaul the need for
finality in a case.
 Collateral Estoppel (Issue Preclusion): Collateral estoppel or issue preclusion, is a doctrine
applicable in situations that are not covered by res judicata because the second action is not
based on the same claim or cause. It forecloses the re-litigation of issues of law and fact that
were actually litigated (that is, contested by the parties and submitted for determination by the
court) and that were necessarily decided by the court. The basic rule of issue preclusion is that a
final judgment preclude relitigation of the same issue of fact or law, so long as (1) the issue was
actually litigated, determined and necessary to the judgment in the prior adjudication, and (2) the
circumstances of the particular case do not suggest any reason why it would be unfair to invoke
the doctrine. Issue preclusion differs from claim preclusion in three ways: (1) it applies to actions
that do not, remotely, involve the same claim, so long as they involve the identical issues of law
or fact; (2) it applies only to issues that were actually litigated in the lawsuit; and (3) modern
issue preclusion in most, though not all, jurisdictions does not carry the identity of parties
requirement found in claim preclusion. The issue sought to be precluded must be the same as that
involved in the prior action. The facts relevant to the particular issue and applicable law must be
identical in order for issue preclusion to apply. (See Little v. Blue Goose Motor Coach). The
issue must have been actually litigated in the prior action in order for issue preclusion to apply.
The issue must have been determined by a valid and binding final judgment. Generally, this
requires that the first determination of the issue was within the authority of the court that decided
it, and that the determination was made in a final decision on the merits. (See Hardy v. Johns-
Manville Sales Corp). The determination of the issue must have been essential to the prior
judgment. An issue that constitutes a necessary component of the decision reached will be
considered essential to the judgment.
 Persons Bound by Judgment: One is not bound by a judgment in litigation in which he
was not designated a party or to which he has not been made a party by service of
process. Preclusion doctrine only applies to individuals who were party to the suit or in
privity to a party to the suit. There are 6 exceptions (Taylor v. Sturgell): (1) A person who
agrees to be bound by the determination of issues in an action between others is bound in
accordance with the terms of his agreement; (2) Non-party preclusion may be justified
based on a variety of pre-existing substantive legal relationships between the person to be
bound and a party to the judgment (i.e. succeeding owners of property, bailee and bailor,
and assignee and assignor); (3) A non-party may be bound by a judgment because she
was adequately represented by someone with the same interests who was a party to the
suit (i.e. trustees, guardians, and other fiduciaries); (4) A non-party is bound by a
judgment if she assumed control over the litigation in which that judgment was rendered;
(5) A party bound by a judgment may not avoid preclusive force by re-litigating through
a proxy; (6) A special statutory scheme may expressly foreclose successive litigation by
non-litigants if the scheme is otherwise consistent with due process.
 Non-Party Preclusion: A party’s representation of a non-party is adequate for preclusion
doctrine purposes only if, at a minimum: (1) The interests of the non-party and her
 representative are aligned; and (2) Either the party understood herself to be acting in a
representative capacity or the original court took care to protect the interests of the non-
party. Notice of the original suit to the person alleged to have been represented may
sometimes be required as well.
 Mutuality of Estoppel: Unlike claim preclusion, issue preclusion does not require strict
mutuality of parties, but only that the party against whom the issue is to be precluded (or
one in privity with that party) must have been a party to the original action (i.e. had
full/fair opportunity to be heard). Therefore, “offensive” collateral estoppel is permitted
even where the party asserting collateral estoppel was not party to the original suit. (See
Parklane Hosiery v. Shore)
 Defensive Collateral Estoppel: Suit 1: Plaintiff 1 v. Defendant 1, Plaintiff loses. Suit 2:
Plaintiff 1 v. Defendant 2, Defendant asserts collateral estoppel to prevent the issue on
which the plaintiff previously lost from being re-litigated. In these circumstances,
mutuality of estoppel (which requires that both parties were part of earlier law suit or had
privity with a party) is eliminated. Bernhard and Blonder-Tongue. Courts will determine
whether the party against whom collateral estoppel is being asserted had a full and fair
opportunity to litigate the issue in the previous suit.
 Offensive Collateral Estoppel: Suit 1: Plaintiff 1 v. Defendant 1, Plaintiff wins. Suit 2:
Plaintiff 2 v. Defendant 1, Plaintiff asserts collateral estoppel to stop the defendant from
re-litigating a particular issue that was decided in the original plaintiff’s favor. Judges
have broad discretion to determine when the use of collateral estopped is fair/equitable
(i.e. mutuality of estoppel may/not be required). Factors to consider: (See Parklane
Hosiery v. Shore) (1) If the party claiming collateral estoppel had a chance to join earlier
litigation; (2) Whether the party against whom collateral estoppel is claimed had a full
and fair opportunity to be heard in the previous suit; (3) Whether there are conflicting
judgments because of multiple lawsuits (Currie footnote in Parkland). This would be a
factor against the use offensive collateral estoppel. Quality of inconsistency should be
considered.