1
The Process and Stages of Litigation
1.1
Stages of Litigation
Stage 0
Jurisdiction and choice of law
Stage I
Pleadings
Complaints, pre-answer motions, answers
Ethical limits
Amendments
Stage II
Discovery
Sequencing, tools and scope
Limits and Compliance
Stage III
Pretrial adjudication
Dismissals, defaults
Summary judgment
Stage IV
Trial/post trial adjudication
JMOL, new motions for trial
Stage V
Respect for judgments
Issue preclusion
Claim preclusion
1.2
2
Informal quiz on US civil litigation facts
a)
Most civil litigation takes place in the US in state courts
b)
Most civil litigation is resolved by settlement
c)
In the US system, clients themselves pay the lawyer
d)
The “American Rule” encourages lawsuits with potentially large recoveries but uncertain results;
it encourages “law reform” lawsuits
Financing Litigation
2.1
The “American” and “English” Rules
Rule
Who pays
Resulting Incentive
“English”
Loser pays winner’s fees
Encourages strong but low-damage cases.
Discourage high-cost “law reform” suits.
“American”
Each party pays own fees
Encourages “law reform” suits. Discourages
meritorious low-damage suits.
2.2
Methods
2.2.1 Liability Insurance

Content: The insurer promises to a) pay damages up to the policy limit, and b) provide a lawyer to
defend any claim.

Most standard liability policies also give the insurer the power to settle a claim within policy
limits without the insured’s consent – the insurers want at minimum to settle cases when legal fees
will be more that the proffered settlement. Nonetheless, the insured has the right to veto a settlement
in medical malpractices.

Most common forms of liability insurance (auto, homeowners, tenants) cover damages for
negligently inflicted injuries only. If on purpose – punitive measures, even criminal suits.
2.2.2 The Contingent Fee

Standard contingent fee arrangement: 20% of a settlement before filling suit, 25% of a filed suit,
33% if case goes to trial, 50% if case goes to appeal. No fee if loses.

Contingent fees case the successful clients to bear part of the costs attributable to the unsuccessful
clients.

Lawyers charging contingent fees might prefer to settle at an early stage.
Who’s in the risk pool
Financial Arrangement
How does the cost get spread
Liability Insurance
Other policy holders, some of No-accident driver’s premiums
whom will have accidents (or subsidize those who have
other liability-creating events).
accidents.
Contingent fees
Other clients of that lawyer, some Fees recovered from winning
of whom will not recover cases subsidize costs of losing
damages.
cases.
2.2.3 Flat Rate
3

A pricing structure that charges a single fixed fee for a service (i.e. demand letter/compliant).

Often used when the recovery is low.
Stage 1: Pleading – Introduction to the Complaint [FRCP 8(a)(2) & 12(b)(6)]
3.1
Rules
FRCP 8(a)(2): A pleading that states a claim for relief must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.
FRCP 12(b)(6): A party may dissent a defense by motion if the defense fails o state a claim upon which
relief can be granted.
3.2
Cases
Haddle v. Garrison (1996) p. 377

Facts: Plaintiff had filed a 42 USC §1985(2) claim (“…If two or more persons …conspire to… injure
such party or witness in his person or property on account of his having so attended or testified…”)
against his former employer for allegedly firing him in an attempt to prevent him from testifying in a
Federal criminal trial. Defendant Garrison, Plaintiff’s former employer, filed a motion to dismiss under
12(b) (6) on grounds that Plaintiff was entitled to no protection under §1985(2) because he was an atwill employee. The District Court granted the motion, which Plaintiff then appealed.

The District Court & Appellate Court: No set of facts are in support of the Plaintiff’s claim which
would entitle him to relief – he has no constitutionally protected interest in continued employment.

The Supreme Court: The gist of wrong at which §1985(2) is directed is not deprivation of property,
but intimidation or retaliation against witness in federal-court proceedings. The term “injured in his
person or property” define the harm that the victim may suffer as a result of the conspiracy to intimidate
or retaliate. Thus, the fact that employment at-will is not “property” for purpose of the Due Process
Clause, does not mean that loss of at-will employment may not injure petitioner in his person or
property for purpose of §1985(2).

Main procedural points of Haddle:
Rule 8(a)(2) and 12(b)(6) mean that the plaintiff’s complaint must allege a harm recognized by law,
or else it will be dismissed. Here, the substantive law was ambiguous about what an “injury to property”
meant. As a result, the courts disagreed on the kinds of allegations that “state a claim” to meet this
requirement.
4
Stage 1: Pleading – Plausibility in Pleading [FRCP 8(a)(2)]
4.1
Overview of FRCP History
The FRCP are a product of the judiciary, not Congress, and therefore are not statutes; Congress
delegated its own rulemaking power to the judiciary, so they are binding.
4.2
Rule
FRCP 8(a)(2): A pleading that states a claim for relief must contain a short and plain statement of
the claim showing that the pleader is entitled to relief.
Not Plausible – dismissed
Allegations raise
Allegations are
mere possibility that equally consistent with
conduct was illegal illegal or legal
conduct
4.3 Cases
Plausible - survives
Allegations “nudge across the Allegations show
line” to support a reasonable probable illegal
inference of illegal conduct
conduct
4.3.1 Conley v. Gibson (1957) p. 388

Plaintiff must “give Defendant fair notice of Plaintiff’s claim and the grounds on which it rests”.

A complaint should not be dismissed under 8(a)(2) unless “beyond doubt that Plaintiff can prove
no set of facts” that would support his claim.
4.3.2 Bell Atlantic Corp. v. Towmbly (2007) p. 391

A complaint must contain allegations with enough facts to state a claim to relief that is plausible
(not just possible or conceivable) on its face.
4.3.3 Ashcroft v. Iqbal (2009) p. 391

Claims:
i.
Defendants established this “policy” of targeting and holding detainees in highly restrictive
conditions. ii.
Defendants knew, condoned, and willfully and maliciously agreed to the racially and religiously
motivated nature of this treatment, which had no legitimate penological interest. iii.
Ashcroft was the “principal architect” of this policy and Mueller was “instrumental in its
adoption, promulgation, and implementation.” 
Two-step Plausibility Test:
i.
Find the “conclusory” allegations (i.e., “formulaic recitation of the elements of a constitutional
discrimination claim”) and ignore them for now;
ii.
Review the rest of the “well-pled” allegations (factual statements that can give rise to a
plausible interference) and decide if they plausibly show that something illegal happened:
a)
Must support a “reasonable inference” of illegal conduct; if there is an “obvious
alternative legal explanation” then the complaint fails.
b)
Such allegations should “nudge the claim across the line from conceivable to
plausible.”
c)
Courts will draw on “judicial experience and common sense” in this task
5
Stage 1: Pleading – Specificity in Pleading [FRCP 9(b)]
6
Stage 1: Pleading—Responding to the Complaint (Motions or Answer) [FRCP 4&12]
7
Stage 1: Pleading – Pleading Burdens [FRCP 8(c)]
8
Stage 1: Pleading—Amendments [FRCP 15]
9
Stage 2: Discovery—Sequencing and Tools [FRCP 26]
10 Stage 2: Discovery—Privacy, Privilege and Trial Preparation Materials [FRCP 26]
11 Stage 2: Discovery – Expert Discovery [FRCP 26]
Testifying expert
Fact witness expert
Consulting expert
Definition
When to disclose
to opposing
counsel?
What must be
disclosed?
Testifying expert is an With personal
expert who is
knowledge of the
identified by a party
facts who also happen
as a potential witness to have relevant
at trial.
expertise – must
Must write a detailed disclose identity and a
report and the final
summary of
version must be
testimony
disclosed, along with
identity
90/30; if it’s fact witness expert, should be
disclose initially and the expertise should also
be disclosed pursuant to 26(a)(2)
26(a)(2)(B)
26(a)(2)(C)
The term ‘consulting expert’ is
used to refer an expert, who
though retained by a party, is not
expected to be called as a
witness at trial.
Need not write a report and
identity need not ordinarily be
disclosed
26(b)(4)(A)
26(b)(4)(D)
Rules on being
deposed?
Are draft reports
discoverable?
No need to disclose unless
26(b)(4)(D)
26(b)(4)(B) No
The draft are protected as work product, not privilege
Yes 26(b)(4)(C)
Are
communications
with counsel
privileged?
If privileged, what 26(b)(4)(C)
if any exceptions to
privilege?
No
Yes
N/A
Nos
11.1 Rules
11.1.1 FRCP 26(a)(4)
i.
Drafts of testifying experts’ reports AND drafts of fact witness’ fact/opinion summaries are
protected (like work product)
ii.
Communications between attorneys and retained testifying and consulting experts are protected
(like clients); BUT cannot hide testifying expert’s opinions and their underlying bases for
compensation (26(b)(4)(C))
iii.
Identities, facts, and opinions of consulting experts are protected unless “it is impracticable for the
party to obtain facts or opinions on the same subject by other means” OR the expert is a Rule 35(b)
(medical examiner)
11.2 Cases
11.2.1 Thompson v. Haskell

P retained expert to perform psychological testing of P, who claimed sexual harassment caused her
depression

Held: Records of exam discoverable.
o
Either the retained expert is a fact witness (no on-going relationship, and this issue is brought
before trial), or
o
If a consulting expert, it is impracticable to get the same highly relevant information about P’s
emotional state.
11.2.2 Chiquita v. M/V International

Shipper retained maritime surveyor expert to examine malfunction of carrier’s loading equipment

Held: consulting expert immune from discovery
o
Not impracticable for carrier to get the same information
12 Stage 3: Resolution without Trial—Default and Dismissal [FRCP 41&55]
13 Stage 3: Pre-Trial Adjudication—Summary Judgment [FRCP56]
14 Stage 4: Trial and Post-Trial Adjudication—Judge & Jury Roles; Judgment as a Matter of Law [FRCP
38&51&59]
14.1 Rules
14.1.1 FRCP 50
i.
Legal standard: a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue.
ii.
The timing: no later than 28 days after entry of judgment or after the jury was discharged
iii.
JMOL vs. 7 Amendment Jury Trial Right: the evidence in the discovery might not be
presented in the same way as it will be at trial – the witness might change their mind – SJ
examine the info presented differently in the different stages during the process using the same
standard.
iv.
50(b): hard to review afterwards; judges will know they still have a chance to make such
motion after the trial – otherwise the judges will routinely make 50(a) motion before the trial
v.
Waiver issues: if no 50(a), waived 50(b); if no 50(b), waived.
14.1.2 FRCP 59
14.2 Cases
14.2.1 Pennsylvania Railroad v. Chamberlain

A party offering evidence that tends equally to sustain two inconsistent propositions does not meet
the burden of proof.