CIV PRO II OUTLINE
FINAL EXAM
CASES
New Trial and Relief from Judgement
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Categories of reasons for new trial
o If judge finds that verdict is clearly wrong because it's not supported by the
weight of the evidence
o If the judge finds that an error occurred in the conduct of trial or the jury's
deliberations
o If a losing party finds new evidence after the trial that would have materially
affectedthe outcome
o In the interest of justice
New Trials for Weight-of-the-Evidence Errors
o The court may weight the evidence and even assess credibility and it need not
resolve reasonable doubts against the movant (unlike motions for JMOL)
o The court should consider: length and complexity of a new trial, importance of
credibility determinations, and the jury’s comparative fact-finding capacity. The
simpler and shorter the trial, the more important credibility is, and the more
reluctant a court should be to second guess the jury
o Court may grant new trial on ground that the verdict is against the weight of the
evidence
Trivedi v. Cooper
o Plaintiff was research scientist for defendant; asserted three claims based on
race: (1) defendant harassed plaintiff; (2) defendant failed to promote plaintiff;
(3) defendant retaliated against plaintiff for seeking legal assistance in
connection with discrimination
o Defendant presented evidence that plaintiff was crazy during HR interviews but
jury returned verdict for plaintiff
o Defendant requested JNOV for all 3 claims
 Defendant waived right to make motion for hostile work environment
claim because didn't move for directed verdict at trial
 Judgment as a matter of law denied for other 2 claims
 Jury's verdict indicates they found plaintiff to be credible and
therefore had sufficient basis for verdict
o Defendant requested new trial for all 3 claims
 Jury's verdicts on failure to promote and retaliation claims were against
the weight of the evidence
 Hostile work environment claim: remittitur
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Appeals
Mac Arthur v. University of Texas Health Center at Tyler (What to Review)
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Rule: Rule 28 of the Federal Rules of Appellate Procedure (FRAP) requires an
appellant to properly present her argument in the appellate brief in order to secure
appellate review.
Takeaway:
o A federal appellate court may only review an issue that was properly
preserved below and presented in the appellate brief.
o A party may abandon a claim made in pleadings if they fail to present any
evidence or arguments related to that claim at trial.
o Also, a party who believes that the instructions given to the jury are
erroneous must object at the trial in order to preserve the issue for appeal.
o When a matter does properly reach the appellate court, the party must
argue the issue in the appellate brief or the claim will be deemed
abandoned.
In Re Recticel Foam Corp. (When to review)
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Rule: Under the finality principle, circuit courts may not exercise jurisdiction to
review a matter before a district court has issued a final decision, unless it falls
within the collateral order exception.
Takeaway:
o Every court must first assess whether it has subject matter jurisdiction
before ruling on a matter; A court without jurisdiction must refuse to hear a
case, regardless of how ripe an issue may be for judicial determination.
o Appellate review is only proper over district courts’ “final decisions.” This is
known as the finality principle. A district court order is deemed final if it
“resolves the contested matter, leaving nothing to be done except execution
of the judgment.”
o The collateral order exception:
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allows appellate review of an order that relates to “(1) an issue
essentially unrelated to the merits of the main dispute, capable of
review without disrupting the main trial; (2) a complete resolution of
the issue, not one that is “unfinished” or “inconclusive”; (3) a right
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CIV PRO II OUTLINE
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capable of vindication on appeal from final judgment; and (4) an
important and unsettled question of controlling law, not merely a
question of the proper exercise of the trial court’s discretion.” United
States v. Sorren, 605 F.2d 1211 (1st Cir. 1979). Put simply, appellate
courts may review orders that meet the requirements of “separability,
finality, urgency and importance.”
o Exceptions:
 Interlocutory Appeal: occurs when a ruling by a trial court is appealed
while other aspects of the case are still proceeding.

Interlocutory appeals are allowed only under specific circumstances,
which are laid down by the federal and the separate state courts.
Claim Preclusion
In Re Recticel Foam Corp. (When to review)
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Rule: res judicata prohibits the same parties from asserting a claim arising out of the
same transaction or set of operative facts after there has been a final judgment on the
merits
Takeaway:
o The Res Judicata Doctrine prohibits parties from relitigating a cause of action
after there has been a final judgment on the merits.
o Res judicata applies when:
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(1) there has been “a final judgment on the merits rendered by a court of
competent jurisdiction,”
(2) on the same cause of action,
(3) between the same parties.
o Res Judicata not only bars legal claims that were actually litigated, but also any
claims that could have properly been raised during the earlier trial.
Taylor v. Sturgell
 Rule: The doctrine of Virtual Representation is not a constitutionally approved method
of nonparty preclusion.
 Takeaway:
o A party cannot bring a claim if their interests were “de facto”
represented in previous claim
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FINAL EXAM
o Virtual Representation is not one the Constitutionally- approved
exceptions to Res Judicata
o Claim preclusion is a process designed to relieve the court of
needless litigation, not create it. Therefore, this court does not
recognize the doctrine of “virtual representation.” However, if a legal
relationship between Taylor and Herrick existed, then claim
preclusion would apply.
Exceptions to Res Judicata (Claim Preclusion)
Issue Preclusion
Claim preclusion v. Issue preclusion:
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Claim preclusion (res judicata) bars litigation of all issues that were or could have been
litigated in the original action under the original claim
Issue preclusion (collateral estoppel) only resolves those issues that were actually
litigated
Felger v. Nichols
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Rule: A person may not assert an issue in a lawsuit that has been previously litigated in
another lawsuit under the doctrine of issue preclusion
Takeaway:
o Both doctrines apply to both claims and defenses
SUBJECTS
Jury Trials
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7th Amendment created a right to a jury trial in civil cases
Applies to federal, not state, courts
Parties waive the right to a jury trial if a demand is not filed and served pursuant to Rule
38 (b)(1)
BUT; Rule 39(b) provides that the court has discretion to grant a motion for a jury trial
on proper issues even when a party has failed to make a proper demand
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The right to a jury:
o Applies to legal claims, not equitable claims
 Legal claims usually involve monetary damages for relief
 Equitable claims include non-monetary relief (injunction, declaratory
judgments)
When there are cases that have both legal and equitable claims (Dairy Queen, Inc. v.
Wood):
o The legal claims are decided by the jury FIRST;
o Then the equitable claims are decided by a judge
 Will rely on facts as found by the jury

Parties waive the right to a jury trial if a demand is not filed and served pursuant to Rule
38(b)(1).
BUT, Rule 39(b) provides that the court has discretion to grant a motion for jury trial on
proper issues even when a party failed to make a proper demand
Judgement as a Matter of Law (JMOL)
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Governed by Rule 50(a) of FRCP
JMOL is similar to: Judgment on the Pleadings, and Summary Judgment, all of which test
the factual sufficiency of a claim.
o Judgment on the pleadings is a motion made after pleading and before
discovery;
o Summary Judgment happens after discovery and before trial;
o JMOL occurs during trial.
In JMOL, the JUDGE, not the jury will rule in favor of one of the parties
Allows defendant to claim that no reasonable jury would find in favor of the jury in
light of the plaintiff’s evidence
JMOL is available BEFORE the jury begins to deliberate
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o But ONLY after one or both sides have finished presenting its case
1.
Parties
present
their
cases to
the jury
2.
3.
One party
makes a
motion for
JMOL
5.
Motion
denied;
goes to
jury
4.
Party who
loss can
make second
motion for
JMOL; AS
LONG as
asked for first
JMOL before
case went to
the jury
Jury makes
verdict
 In JMOL, the court will consider the NON-MOVING party’s evidence in the
most favorable light
 In JMOL and Choice of law, most courts apply the federal law, NOT the
state
Judgement Notwithstanding Verdict (JNOV)
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Governed by Rule 50(b) of FRCP
JNOV asks the court to IGNORE the jury verdict
Happens after the jury decision
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Judges will often grant JNOV motions v. JMOL motions; Reasons are:
o If JMOL is granted, then verdict is taken away from jury
o Losing party will likely appeal
o If appellate court overturns trial judge; parties will have to go back to trial court
with new jury
 Extra time, money, resources
o If trial judge grants JNOV after jury verdict and appellate court disagrees, then
appellate court will just the initial jury verdict back in place
Requirements for JNOV motions:
o Only available to parties who previously filed Rule 50(a) (JMOL)motions before
the jury received the case
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o Must file Rule 50(b) motions (JNOV) within 28 days after the verdict
New Trial
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Governed by Rule 59 of FRCP
Allows a judge to toss out entire case and order a new trial
Permits judge to weigh evidence him/herself
o Happens when a winning party’s case is weak, but not weak enough to support a
JNOV
Must file Rule 59 motion within 28 days after the verdict
Res Judicata (Claim Preclusion)
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When a party wins a case, they on ALL of the issues on the other party that were
brought, or could have been brought on that claim.
Four Elements to Res Judicata:
o There was a final judgment
 Typically means first case is over and judgment is enforceable
 Some courts hold judgment is final after trial court enters the judgment
(even though/if case is being appealed)
o A judgment on the merits
 NOT on the merits if dismissed for:
 Lack of jurisdiction
 Voluntary dismissal
 ON the merits if dismissed for:
 Summary Judgment
 Failure to state a claim
 Failure to prosecute
o Claims in the second suit reiterate (similar) the claims in the initial suit
 Arising from the same transaction or occurrence
 Some courts use “factual allegations” standard
o More lenient toward plaintiff
o All parties in both suits are the same
 Someone in privity with a party can also be barred by res judicata
 Privity: two people (parties) who are so closely aligned that a judgment
on one should be deemed as a judgment on the other
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CIV PRO II OUTLINE
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Collateral Estoppel (Issue Preclusion)
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Prohibits re-litigating specific issues of fact or law that were previously brought up in
prior claims or actions
More narrow than claim preclusion
o Claim preclusion typically applies between the same initial parties in privity, but
in some cases can also apply to a non-party
Elements of Issue Preclusion:
o Issue in question is identical to any issue of fact or law that was before the court
in a previous case
o The previous case ended in valid and final judgement
o Issue was actually litigated in first previous/first case
o Issue was necessary to the judgement of the first case
o Party against who preclusion is asserted had a full and fair opportunity to litigate
the issue in the first case
Appeals
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Governed by 28 U.S.C. § 1291
Must have a final judgment or interlocutory order
Must file within 30 days
o 10 days for an interlocutory order
o Interlocutory appeals typically frowned up by the courts
 Seen as slowing down litigation
Purpose is to avoid piecemeal litigation
Parties may appeal before resolution of collateral issues
What you CANNOT appeal:
o Denial of a motion to dismiss or summary judgment
o Order requiring a party to correct a technical violation
Elements of Issue Preclusion:
o Issue in question is identical to any issue of fact or law that was before the court
in a previous case
o The previous case ended in valid and final judgement
o Issue was actually litigated in first previous/first case
o Issue was necessary to the judgement of the first case
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CIV PRO II OUTLINE
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Party against who preclusion is asserted had a full and fair opportunity to litigate the issue in
the first case
o
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