CIV PRO OUTLINE:
Table of Contents
Taking on Representation/Before Commencement of Litigation: ............................................ 3
Commencing the Action: ........................................................................................................ 3
Preliminary Relief: ................................................................................................................. 4
Responding to the Complaint: ................................................................................................ 5
Claim/Counterclaim Chart ..................................................................................................... 6
Subsequent Pleadings and Amendments: ............................................................................... 6
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Implead .................................................................................................................................6
Discovery............................................................................................................................... 6
Standard of Discoverability: ...........................................................................................................7
The Mechanics: ..............................................................................................................................7
Physical and Mental Exams: ...........................................................................................................8
Depositions ...................................................................................................................................8
Objections at a Deposition: ............................................................................................................9
Privilege and Work-Product Protection: ................................................................................. 9
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Attorney-client privilege ........................................................................................................9
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Work product ...................................................................................................................... 10
Discovery of Experts ............................................................................................................ 10
Abuses and Sanctions: ......................................................................................................... 11
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Spoliation ............................................................................................................................ 11
Trial: ................................................................................................................................... 12
After Trial: ........................................................................................................................... 12
Jurisdiction: ......................................................................................................................... 13
Personal Jurisdiction .................................................................................................................... 13
Subject Matter Jurisdiction........................................................................................................... 13
Supplemental jurisdiction ............................................................................................................ 13
Removal jurisdiction .................................................................................................................... 14
Judgment as a Matter of Law: ............................................................................................. 14
Standard of Persuasion: ....................................................................................................... 14
Opacity of the Verdict: ......................................................................................................... 15
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Fact-Law Distinctions and the Roles of Court/Jury: ............................................................... 15
Burden of Production: .......................................................................................................... 16
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Presumptions ...................................................................................................................... 16
Discrimination Cases: ................................................................................................................... 16
Summary Judgment: ............................................................................................................ 16
Pleadings: ........................................................................................................................... 17
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Notice pleading.................................................................................................................... 17
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Rule 9 .................................................................................................................................. 17
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Fact pleading ....................................................................................................................... 17
Burden of pleading on Plaintiff ..................................................................................................... 18
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Burden of pleading on Defense ............................................................................................ 18
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Assigning burden considerations .......................................................................................... 18
Amending Pleadings: ........................................................................................................... 19
General........................................................................................................................................ 19
Amendment Relating Back ........................................................................................................... 19
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Adding new defendant .............................................................................................................................19
Can change the defendant party ..............................................................................................................19
Effects of Judgment: ............................................................................................................ 20
Altering a judgment: .................................................................................................................... 20
Preclusion............................................................................................................................ 20
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Claim preclusion .................................................................................................................. 20
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Issue preclusion ................................................................................................................... 21
Non-Mutual issue preclusion: ....................................................................................................... 21
Joinder: ............................................................................................................................... 22
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Voluntary ............................................................................................................................ 22
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Compulsory ......................................................................................................................... 22
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Intervention ........................................................................................................................ 22
Class Actions: ...................................................................................................................... 22
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Four prerequisites ................................................................................................................ 22
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Settlement........................................................................................................................... 23
In re Flint Water Case: ......................................................................................................... 23
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Objections ........................................................................................................................... 24
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Taking on Representation/Before Commencement of Litigation:
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Things to consider:
o Merits of the case.
 Facts at hand and relevant law.
o Conflicts of interest.
o Statute of limitations.
 When does the claim accrue? From moment of incident or moment of
realization that it happened?
 Is there a potential for the time to be tolled? Savings statute (for bringing
to wrong court of jurisdiction).
o Cost of litigation vs. potential damages collected.
 Cost can also be the emotional tone of reliving a trauma.
o Too busy? Lack of expertise in issue area?
o Worth trying to settle first? Mediation or arbitration?
o Who should you sue?
 Person? Employer? Both?
o What relief are you seeking?
Actions to take:
o Talk to relevant people.
 Client, witnesses, people who have/could have relevant information,
others involved.
o Investigate.
 Check out circumstances that could indicate whether laws were actually
broken – and whether it can be proven.
 Research relevant statutes, regulations, codes, contracts, etc.
 Was there a legal duty that was breached?
 **Do not misrepresent yourself – Model Rules of Professional Conduct of
ABA Rule 4 (page 11 of materials)**
 Can’t lie about yourself.
 Can’t talk to a person involved if their lawyer hasn’t consented.
 Shouldn’t talk to unrepresented person if they don’t understand
their involvement or lawyer’s interest in the matter.
o Consider reaching out to opposing counsel to alert them of potential litigation and
stress duty to preserve evidence.
o Consider whether any potential witnesses have health issues – may be able to
perpetuate a testimony before the action is brought.
Commencing the Action:
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Starts with a Complaint: Short and plain statement of the claim showing that the pleader
is entitled to relief.
o Can’t be conclusory and must be plausible. (Twombly – Iqbal Standard).
 Asserts facts “to the best of the person’s knowledge”
 Allowed to set out 2 or more mutually exclusive statements as part of
claim (alleged either occurred)
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o Must not be erroneous or frivolous. Rule 11 sanctions (for written only).
o Must survive potential motions to dismiss.
 Particularly 12(b)(6): failure to state a claim upon which relief can be
granted.
o Considerations:
 Which court?
 Jurisdiction, judge pool, jury pool, speed (state courts take longer),
which procedure do you want to use (even if using state law, fed
courts use FRCP)
 Who are the parties?
 What claims?
 What do you have to do to state them?
o Need to survive a 12(b)(6)
o What are the questions of law?
 Elements of legal claim: duty of care, breach of
duty, causation, damages.
 Obligations of parties?
 What facts help get you there?
 What relief?
 Legal relief (money damages)
 Equitable relief (injunctions, rescission (of a contract), declaration,
etc.)
 Do you want jury as trier of facts?
Service or Waiver:
o Must serve a Summons on the defendant (Fed system: within 90 days of
Complaint filing).
 Usually with a copy of the complaint.
o Usually have to do more than just putting it in the mail, unless the recipient is a
corporation.
 Can mail the complaint and a request to waive summons.
Preliminary Relief:
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Analysis: Plaintiff seeking preliminary relief must establish:
o Probability to succeed on the merits (is it plausible)
o Probability to suffer irreparable harm in the absence of preliminary relief
o That the balance of equities tips in their favor, and
o Injunction is in the public interest.
o These are evaluated in relation to the plaintiff! If preliminary injunction
would only benefit non-parties, less likely to grant relief. If plaintiff is
already injured, less likely to grant PI. Unlikely to grant injunction as well
because there is no ongoing threat to plaintiff if they are already hurt.
Additional considerations:
o Weigh the harms of relief vs. not granting the relief
o Considers the likelihood of harm but also the extent/danger of the harm (more
danger excuses less likelihood)
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o What facts/evidence do you need to prove these things
TRO (at least try it first)
 Present affidavits, sworn written statements, etc. supporting the motion.
o Typically issued without the court hearing from live witnesses, but usually for a
short amount of time.
o Hearing typically shortly after to evaluate preliminary injunction, but important to
maintain status quo in the meantime.
TRO without notice (ex parte) – reserved for extraordinary circumstances and only when
necessary for that specific instances
o Used when there is fear that evidence would be destroyed or opposing party
would obstruct process.
o Only for narrow circumstances, limited to 14 days initially, allows for defendant
to move earlier to dissolve the order, and insists the court set a hearing for
preliminary injunction for earliest possible time.
o Constitutional issues:
 Guaranteed right to due process under 5th and 14th amendments before
deprivation of liberties
Preliminary injunction
o Court order to compel a party to do or refrain from specific acts.
Court process continues, this is merely to protect parties as process ensues.
Responding to the Complaint:
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First, try to get more time – call the other lawyer.
Second, think of ways to avoid filing an Answer. The longer you take, the more you
maintain the status quo the better for your client.
o Can give plaintiff what they want or enough to settle the case (process, especially
discovery, is expensive and take a while).
o Look at possible motions to dismiss. 12(b) – page 19 in FRCP
 12(b) 2-5: if any of these are not included in Rule 12 motion then party
has waived them.
 If you don’t make a motion at all, can preserve them in you Answer to
initial complaint.
 If not in answer, can still add a defense in an amendment to Answer so
long as within 21 days from Answer.
o Dismissing does not mean case is over.
 Plaintiff may appeal dismissal.
 Sometimes dismissal merely states plaintiff didn’t do something correctly,
so they can try again.
 12(b)(6) may be conditional or final.
The ANSWER components
o Must respond to allegations of Complaint in “short and plain terms”
 If not denied, the claim is accepted and admitted and plaintiff no longer
has to prove it.
 Can deny based on evidence, reasonable belief that it warrants a denial, or
lack of information (DKI – deny knowledge or information).
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Can rewrite, admit certain things, and deny the rest (only admit what
is necessary but have to admit what is true)
 Pay attention to language, if language/adverbs apply to
multiple elements of a paragraph, and it is wrong, deny it all
o Affirmative defenses (if applicable)
o Counterclaims and crossclaims
o What to consider before responding:
 Talk to client(s), get relevant information, make sure you’re responding
with best and proper information – good faith effort. Rule 11 sanctions
apply.
 Feel free to rewrite paragraphs to fit what you have to admit, then deny the
rest.
Claim/Counterclaim Chart
Subsequent Pleadings and Amendments:
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Implead:
o Bringing in a third party who is liable to you if you are liable to another.
 “If I’m liable to plaintiff, this guy is liable to me” (at least in part)
 Must have an established legal obligation through contribution and
the jurisdiction has a law for contribution.
o After the answer, would have to serve a summons and third-party complaint on
new party (who would become third party defendant).
 Avoids whipsaw (losing both ways on the same issue in separate actions)
o Things to consider:
 Can third party be brought in? (is there legal obligation/contribution laws)
 Is third party defendant liable to third party plaintiff?
 Can third party even pay?
Can amend pleadings with consent of adversary or court.
o A party can contend through an appeal that the opposing party should not have
been able to present certain evidence if it was on an issue falling outside the
pleadings, so amendments are important.
Discovery: [extensive, expensive, and intrusive]
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Standard of Discoverability:
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Non-privileged information “relevant to any party’s claim or defense”
o The court could still “order discovery of any matter relevant to the subject matter
involved in the action”
o If it is on the path to admissible evidence, that seems to satisfy standard.
o If privileged or protect, don’t have to share, but have to say, generally, what
it is
Doesn’t have to be admissible in evidence to be discoverable so long as it may lead to the
discovery of admissible evidence.
Discovery request must be “proportional to the needs of the case,” considering:
o The importance of the issues at stake in the action,
o The amount in controversy,
o The parties’ relative access to relevant information (and intrusiveness),
o The parties’ resources,
o The importance of the discovery in resolving the issues, and
o Whether the burden or expense of the proposed discovery outweighs its likely
benefit.
Johnson v. Lizarraga
o Request can’t be an overbroad or disproportional to state needs.
 Takes into account the amount of work it would take to go through
records.
o If a party objects to a discovery request, the original party would then move to
compel it.
 Party seeking to compel the discovery bears the burden of demonstrating
that the objection is unjustified.
 Party denying discovery request is required to carry a heavy burden of
showing why discovery was denied.
The Mechanics:
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Meet to discuss disclosure plan.
Request for Admission:
o Only applies to the parties of the litigation.
Document Requests/Examinations:
o Typically to see documents, emails, and other ESI, but can also be to see a piece
of land or try out a machine.
Responding to Document Requests: [Three piles: Produce. Don’t produce. Ask about.]
o Is it within scope of case?
o Is document within scope of the request?
o Is it protected by privilege?
 Have to generally describe what you protect.
o Is it protected by work-product?
 Have to generally describe what you protect.
o Is it dangerous? Will it hurt us?
 Hurtful won’t preclude discovery, but need to know about it.
 Can’t conceal the existence of a document within scope.
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Interrogatories: only get 25 unless parties agree to more or court grants request if crucial
to the pursuit of justice.
o Only applies to parties (not third persons or witnesses).
o Response made in writing and under oath.
o Can be broad and open-ended.
 State all reasons why…Describe all occasions on which…For each
product line and each district, state how many were sold in each month of
2019…
o Considered an evidentiary admission but not necessarily a judicial admission (not
necessarily a settled fact)
Can order discovery on a specific aspect of claim, like jurisdiction – would allow for
discovery on documents/information that would help determine jurisdictional issues.
Physical and Mental Exams:
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If compelling an exam, typically only applies to a party.
Discovering party still needs to demonstrate to a court that there is good cause for the
discovery.
o If the party does not allege mental or physical issues in support or defense of any
claim, then the party that wants the exam must prove that the party’s condition
was in controversy and relevant to the issues at hand. (Schlagenhauf, the bus
driver)
Depositions: party typically gets 10 depositions
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Under oath, out of court testimony. Typically, orally conducted with a written record.
o Affidavit is a sworn written statement.
o Typically, both parties have representation present.
Take deposition before an action is brought:
o If witness may not make it to trial (medical issue)
A party’s deposition can be used for “any purpose”
o Evidence or impeachment.
Permissible uses at trial for depositions [limited by the basic principle that witnesses are
expected to testify live]:
o If opposing party consents to its use or get a waiver (typically waived for experts
to do a video or transcript).
o Unavailability: If opposing party was present at deposition and the witness that
was deposed is unavailable to testify live at trial. (Admissibility of evidence rules
still apply)
o Admission: If a party admits to something, then evidence of that admittance may
be admissible in trial.
o Inconsistency/impeachment: If deponent testifies at trial, they can be impeached
with their deposition.
o Ordinary evidence use that satisfies an objection to hearsay.
Close the loop!
o Were you wearing glasses? Were they the right perscription?
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Arranging a Deposition:
 Party wishing to take witness’s deposition must make all arrangements.
o Place/platform.
o Subpoena the witness.
 Corporation can decide who will be deposed if the subject is corporate
record keeping.
 Subpoena may outline other discovery requests similar to interrogatory.
 After deposition, deponent can make a timely request to review/make amendments which
will be attached to copy of deposition.
Objections at a Deposition:
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Objection to a question: must be made at deposition
o Raising it preserves the objection for trial.
o If party asking the question thinks it’s fine, they can ignore it. Otherwise rephrase.
o Doesn’t prevent the witness from answering.
o Can advise your witness from answering – Rule 30(c)(2)
 If answer would disclose privileged information.
 If question is outside the limits/scope of the case.
 If party wants to present a 30(d)(3) motion – party may move to terminate
or limit the deposition if it “is being conducted in bad faith or in a manner
that unreasonably annoys, embarrasses, or oppresses the deponent or
party.” This would suspend the deposition until court rules on it.
Objection to an answer: doesn’t need to be made at deposition
o If answer to question is potentially hearsay or irrelevant, have to wait to see how
it is used at trial.
Privilege and Work-Product Protection:
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Statements made in confidence of a certain relationship are considered privileged.
o Attorney-client
o Spouse-spouse
o Psychotherapist-patient
o Person-religious/spiritual cleric
Attorney-client privilege: [conversation is privileged, but facts are not – although if
someone says something, who can say it’s a fact?]
o Statement has to be confidential – if another party is around, not made in
confidence.
o Only applies to client. Does not apply to witnesses.
o Client cannot be compelled to answer “what they said or wrote to attorney” but
cannot refuse to disclose relevant facts within their knowledge merely because it
was incorporated into a statement to attorney.
o Corporate attorney can claim privilege from all employees (potentially former
employees too, as long as it relates to business-related activity during their term of
employment)
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Work product: if opposing party claims it, make an argument for “special need”
that talks about needing the immediate thoughts and impressions of witness/info,
that worried about change in situation/perception
o Only applies to work/conduct “in anticipation of litigation or for trial”
o Applies to anyone on litigation team, extends beyond client communications.
o A party is largely on par with the attorney for purposes of work product, and those
who facilitate the conversation are also protected.
o After work-product protection is claimed, burden is on the party seeking the
information to show “special need” that producing the documents is necessary to
prepare their case and that they cannot reasonably get this information otherwise.
 Would have to show witness/source of information is no longer
available/hard to reach and they did not have a previous opportunity to
retrieve it.
 Only in rare circumstances can necessity overcome these protections.
o Even when court compels the showing of work-product materials due to special
need, court shall protect against disclosure of mental impressions, conclusions,
opinions, or legal theories of an attorney/representative of a party concerning the
litigation.
 Includes memos from oral statements that include attorney thoughts.
If claiming privilege/work-product protections:
o 26(b)(5)(B): Must still provide information about the document it wants to protect
and affirmatively make the claim that the document is privileged/protected.
 Opposing counsel and court can evaluate the claim of protection (in
camera if necessary)
o 26(b)(5)(A): If a party receives materials that the producing party later claims is
protected, receiving party must do what it can to limit the damage until
discoverability issue is resolved (sequester/destroy/suppress info until court rules
on whether it deserves protection. Producing party must preserve it.
 If a party inadvertently/accidentally discloses privileged/protected
information, this does not constitute waiving that privilege/protection so
long as party took reasonable measures to prevent such disclosures and
made prompt, reasonable steps after discovery of the error to rectify it.
Discovery of Experts:
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General Rule:
o If you testify at trial, you are subject to discovery.
Trial Experts: discoverable
o Upon motion, party can depose experts who will testify at trial.
o If expert is “retained or specially employed to provide expert testimony in the
case,” and they will be a witness at trial, they must prepare and sign a report
giving complete statement of the substance and prepare qualifications/recent
publications.
Consulting Experts: discovery limited (but typically sought, as a consulting expert who is
not testifying might have information the party doesn’t want to bring into trial)
o Retained or specifically employed in anticipation of litigation or preparation for
trial, but not expected to be called as a witness at trial.
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o Party seeking discovery would have to exceptional circumstances under which it
is impracticable for the party seeking discovery to obtain facts or opinions on the
same subject by other means.
 Example: Thompson v. Haskell when lawyer got exam of own client.
Would be exceptional circumstance bc opposing party wouldn’t have
known to get the exam.
o If a party compels a physical/mental exam (the issue of their health must be
central to the issue) of the opposing client, then the counsel of the client who had
to get the exam can access the exam. Must be compelled to waive the privilege
here.
 Any exam that they’d bring into trial is discoverable.
Percipient Experts: observer of facts that are relevant to the case through their normal
operations/responsibilities.
o Subject to discovery and treated like any other witness called to trial.
o They have witnessed some aspect of the case to be considered a percipient expert.
Informal Experts: discovery not allowed. Only experts exempt from discovery.
o Experts informally consulted in preparation for trial but not retained or
specifically employed.
 Exempt of any showing of exceptional circumstances.
General-Employee Experts: only under exceptional circumstances
o Someone who already works at firm would not be specifically retained/employed
in anticipation of litigation/preparation for trial so they are excluded from
discoverability unless called as witness.
Abuses and Sanctions:
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Spoliation:
o Destruction or material alteration of evidence, or the failure to preserve property
for another’s use as evidence in pending or reasonably foreseeable litigation.
o Not preserving information invites an inference that information was unfavorable
– if it was helpful to their own case, party would work to preserve it.
o Party has duty to preserve potentially relevant evidence once that party anticipates
litigation.
 Obligation starts with counsel, who must advise clients of type of relevant
info that must be preserved.
 Duty extends to corporate parties who are responsible for conveying to
their employees the requirements for preserving evidence.
 Must suspend routine document retention/destruction policy and put in
place a “litigation hold” to ensure preservation of relevant documents.
Parties that fail in their obligation to preserve evidence run the risk of being sanctioned.
Possibilities include:
o Assessment of fines/attorneys’ fees and costs.
o Preclusion of certain lines of argument that might have been advanced by
culpable party.
o Jury instruction informing jurors that they may draw adverse inference from
spoliator’s action.
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For electronically stored information (Rule 37(e)) that is not preserved and party failed to
take reasonable steps:
o If lost information causes prejudice to opposing party, then court may order no
greater than necessary steps to remedy.
o If party lost information and intended to do so, then court can:
 Presume information was harmful to the party that lost it,
 Instruct jury that it may or must presume information lost was unfavorable
to party that lost it, or
 Dismiss the action or enter default judgment.
Obstructive conduct during proceedings (preliminary or trial) may warrant sanctions.
o Courts can consider collateral issues (like sanctions) after an action is no longer
pending (wait for trial to conclude)
o Rule 30(d)(2) allows for sanctions on a person who impedes, delays, or frustrates
the fair examination of the deponent.
o Defense counsel has to show cause for obstructive actions during deposition.
Attorneys must follow strict timelines set out by court.
o Sutker v. Simmons – lawyer filed the expert’s CV on time but report was 18 mins
late and the whole case was dismissed.
 If client here, sue the lawyer. If lawyer, anticipate lawsuit.
Trial:
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Things to consider:
o Jury selection
 For cause (unlimited)
 Counsel has to persuade court that juror is incompetent or likely to
be biased.
 Peremptory (Limited number, typically three)
o JNOV
 Can only get JNOV if they have made a motion for judgment as matter of
law at end of arguments.
After Trial:
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Effect of Judgment:
o Res Judicata (claim preclusion): after completing a court procedure on a claim,
cannot sue for same claim again
o Collateral estoppel (issue preclusion): after adjudicating on an issue, courts will
not relitigate it.
Appeal:
o Three standards of review:
 Questions of law
 Abuse of discretion
 “Clearly erroneous” findings in a bench trial
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Jurisdiction:
Personal Jurisdiction
o People:
 Transitory/Tag – jurisdiction wherever you’re served, no matter why
you’re there
 Domicile – if you’re a citizen of a state you are subject to their jurisdiction
 Look at what establishes residency (voter registration, lease, ID,
longstanding period of living, car registration laws).
 Consent – failure to file a motion to dismiss at the onset on personal
jurisdiction waives the right to object on personal jurisdiction (counts as
consent)
o Corporations/businesses:
 Consent (see above)
 General jurisdiction – place of incorporation or principal place of business
(HQ)
 Defendant’s activities connected with the state are so systematic
and continuous that jurisdiction there is established regardless of
relevance to the claim.
 Specific jurisdiction – sufficient contact with the state relevant to this case
 “Purposeful availment” (Zippo case)
Subject Matter Jurisdiction (not waivable)
o States:
 See if the state has courts of limited jurisdiction: small claims, family, etc.
 Otherwise general jurisdiction courts.
o Federal:
 Federal question – constitutional or federal law question
 Complaint must center on a federal question to apply, can’t just be
tangential.
 Diversity
 Claim over $75,000
 Must have complete diversity
o The same state cannot be represented on both sides of the
“v.”
o Certain statutes require only minimal diversity (check other notes)
Supplemental jurisdiction
o If a claim is centered on federal issue, federal court can address state-law claims
related to case/controversy.
o If an anchor claim has federal jurisdiction, other claims that wouldn’t qualify can
join in.
o Does not apply if basis for federal jurisdiction is purely from diversity it the
additional claim will compromise complete diversity.
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Removal jurisdiction
o If an action is brought in state court but it could have been brought in federal
court, defendant can remove it to the local federal court.
o Does not apply if federal jurisdiction would be based on diversity and any of the
defendants are citizens of the state in which the action is brought.
o Must be done within 30 days of receiving pleading.
Judgment as a Matter of Law:
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This is the judge confining what the jury can reasonably infer.
The law prescribes that one party should win regardless of whatever factual conclusions
the trier of fact (usually jury) might have reached.
o Assesses laws and factual conclusions the jury could reasonably reach.
Things to consider:
o Court looks at evidence in the reasonable light most favorable to the non-moving
party.
 Must be no reason to believe moving party’s evidence: no factual
contention and must be a disinterested witness.
o Is it plausible that jury could reasonably find for non-moving party by
preponderance?
 If Plaintiff moves for directed verdict: to send case to jury, Defendant
merely needs to prove one element of plaintiff’s claim is unsettled as a
matter of fact.
 Plaintiff needs to prove all elements of claim are settled as a matter
of fact.
 If Defendant moves for directed verdict: to send case to jury, Plaintiff
needs to show each and every element of claim has factual disputes or is
settled for Plaintiff.
o Presumptions:
 If A, then B unless evidence suggesting not B.
 If evidence suggesting not B, then up to jury.
 If A, and no evidence presented suggesting not B, then jury instruction of
“If A, then B”
Court gives credence to evidence favoring non-moving party as well as evidence
supporting the moving party that is uncontradicted and unimpeached so long as it comes
from a disinterested witness.
Elements of a Claim:
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What does the law require?
What goes into determining that?
Standard of Persuasion:
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50/50 tie goes to defendant
There are limitations to what juries can infer – must be reasonable.
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o Plaintiff needs to present enough evidence that makes it plausibly more likely
than not.
Pennsylvania v. Chamberlain (dead guy at freight train park, one good witness)
Opacity of the Verdict:
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Jury gives simple verdict without giving reason as to why defendant is/isn’t liable or how
they reached decision on damages.
Trial judge can ask for special verdict (findings on specific questions).
o Ex: how did sheep get on the tracks? If it went through gate, plaintiff cannot
collect. If due to a hole in the fence, defendant liable)
o Problems: jury can be inconsistent with logic/reasoning and put more burden on
jury (have to be unanimous)
Fact-Law Distinctions and the Roles of Court/Jury:
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Court as factfinder:
o Trier of facts in bench trial
o Evidentiary rulings (like hearsay exceptions)
o Confine factual findings jury can make
Adjudicative facts:
o Judicial notice: court declaring facts
o Court can declare facts established if they are not subject to reasonable dispute
 Ex: October 12, 2021 was a Tuesday
o Court will instruct the jury to accept such facts as conclusive
Legislative (law-making) facts:
o Facts about the world, not this case only
o Trial court may determine it to be true even if parties provide no support for it
o Appellate court may determine it to be true even if nothing in trial court record
supports it
 Review trial court determinations of law de novo (new from scratch)
 Want to promote consistency in the court system, and reviewing lower
court decisions fresh will allow for that
Jury as determiner of norms:
o Facts: what happened
o Norms: reflection of what we as society think about the facts and what we do
about them
o Jury can determine whether conduct is reasonable, negligent, etc. and determine
standards (norms) for this particular case
o Democratizes process – opaque verdict ensures jury rulings don’t establish lawbased precedent
Burden of proof = burden of production + burden of persuasion
 Burden of production: which party has to present evidence
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Burden of persuasion: which party has to prove the proposition and the applicable
standard
Judge determines burden of production.
Factfinder determines if burden of persuasion has been met.
Burden of Production:
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Plaintiff has burden to produce enough evidence to prove that the defendant was at fault
(by preponderance).
o If neither party produces enough evidence to make a determination, stick with
status quo – defendant not liable.
Defense has burden of production on affirmative defenses.
Wording of the statute can indicate who has burden of production
o Words like “unless” “except” or “but if not” indicate affirmative defense
o What is the essential issue?
 Generally wrong unless in certain circumstances?
 Do we generally presume conduct is normal without more information?
Presumptions:
o If A, then B – unless some proof of not B (then up to jury)
 Proving A shifts burden of production
Discrimination Cases:
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McDonnell Douglas standard
o Complainant in Title VII discrimination trial must carry the initial burden
establishing prima facie case of racial discrimination (details in notes)
 This shifts burden of production to defendant: they must produce an
alternative explanation
o Factfinder still has to believe plaintiff (still have to find “A” to get to a
presumption on “B”)
St. Mary’s:
o Merely disbelieving employer in their rebuttal doesn’t prove discrimination.
Reeves:
o In judgment as a matter of law, look at all evidence in light most favorable to nonmoving party, but also uncontradicted and unimpeached testimony from
disinterested witnesses.
Summary Judgment:
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Has non-moving party presented enough compelling admissible evidence to get to the
jury?
Typically after discovery – “put up or shut up” if you have enough evidence to get to the
jury, demonstrate it otherwise I’m entitled to judgment as a matter of law
Cannot simply rely on pleadings.
o Pleadings are only allegations – need evidence.
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o Party opposing summary judgment may present a statement in an adversary’s
pleading. (Typically pleading that was later amended)
Evidence in support/opposition to summary judgment presented on paper (or electronic
equivalent)
o Affidavits and declarations of witness testimony (cannot be compelled)
Court does not assess credibility of witnesses – facts in light most favorable to nonmoving party
o Court believes affidavits from non-moving party as if true.
Lot of work to assemble materials and prove.
o Could be a deterrent for filing motion for it.
Considerations:
o Are the documents produced sufficient?
 Hearsay?
 Unreliable?
 Maybe it is a document (like a letter) but should be an affidavit so
it’s a sworn statement.
If burden of production is on plaintiff at trial, defendant S.J. motion merely has to
demonstrate plaintiff hasn’t met the burden
o Defendant can’t be conclusory, but doesn’t need evidence in the contrary to
plaintiff claims, just that plaintiff doesn’t have enough admissible evidence to
meet burden
Evaluation:
o If cross motions, granting one implies denial of other.
o What is necessary for each element of the claim?
o Documents reliable/sufficient to prove all elements of claim?
Pleadings:
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Notice pleading (not permitted under Twombly/Iqbal):
o Complaint should not be dismissed for failure to state a claim unless it appears
plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.
o Short and plain statement of the claim that will give defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.
o Small claims typically runs under different system because no attorneys, no largescale discovery process, and more simple disputes.
Rule 9 discusses special circumstances in which pleadings require more details.
o Item of special damages: if it’s not easy to infer from the main claim (like getting
diabetes from a sledgehammer injury as opposed to a headache)
o Any allegation of fraud or mistake must state specific circumstances that led to
fraud/mistake.
 Mental state (malice, intent, knowledge, etc.) can be alleged generally.
 Need the facts that give rise to a strong inference of fraudulent intent.
Fact pleading (Twombly and Iqbal):
o Can’t be conclusory.
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o If allegations are true, can you reasonably infer the conclusion?
 Factual content must allow the court to draw the reasonable inference that
the defendant is liable.
o Assuming factual allegations in the complaint as true does not apply to legal
conclusion.
o Complaint must present plausible [but, in practice, appears to actually be
probable] claim for relief.
 Context-specific task.
 Must be plausible, not just possible.
o Pleading facts that are merely consistent with defendant’s liability stops short of
the line between possibility and plausibility.
o Of note, both Twombly and Iqbal discuss the expense and intrusiveness of
discovery as reasons to impose fact pleading rather than notice pleading.
Burden of pleading on Plaintiff
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o Start:
 Plead a sufficient claim that includes all arguments/facts/claims plaintiff
wants to raise.
o In discovery:
 Discovery must be related/relevant to party’s claim or defense (as
articulated in pleading).
 This is meant to prevent fishing expeditions and ensure opposing
party has notice of what they will likely need to produce in
discovery.
o Relation back of amendments:
 Original Complaint has to give some notice about the possibility this new
issue could arise.
o At trial:
 Can only offer evidence that relates to the pleading. Defense should have
notice to answer claims they’ll need to counter.
 If argument seems outside scope of Complaint, court can determine:
 Didn’t give proper notice, no dice.
 Sufficient notice, can proceed.
 Plaintiff can pursue the issue but with a
suspension/postponement/re-opening of discovery.
Burden of pleading on Defense:
o Mostly related to notice – must give notice of potential defenses.
 Can be conclusory on affirmative defenses.
Assigning burden considerations:
o Would the opposing party be surprised about a proposition if it wasn’t mentioned
in the pleading?
o Who has access to evidence?
o How is the statute worded? (“unless” “but” language indicates affirmative
defense)
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Amending Pleadings:
General
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If pleading has errors or is incomplete (maybe new information arose in discovery).
o If you will want to use new arguments in court, present evidence related to
them, and also pursue them in discovery, need to have it in pleading, so
should amend.
One opportunity to amend Complaint “as a matter of course” with no consent or
permission needed.
o Tight time limit – typically 21 days.
o Not meant to be something saved in your pocket; should be to clean up your
pleading
Other attempts to amend require written consent from opponent of leave of court.
o Court should freely give leave when justice so requires.
For amendment to be valid:
o Must be a claim on which relief may be granted.
o Need to satisfy statute of limitations (or relate back).
Determining whether amendment causes prejudice:
o Would defendant be in a worse position now than they would have been if the
original Complaint had this amendment included?
 Didn’t prepare arguments for it, didn’t have notice to preserve evidence
(but that’s not a great argument bc they should be preserving evidence)
 If they are in worse position, can always delay/pause the hearing and/or
have amending party compensation for the time/costs.
Court’s discretion is limited to granting leave to amend. (Krupski)
Amendment Relating Back: Only applicable if a statute of limitations issue
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Can relate back if claim grew out of the same transaction and occurrence: (Porter)
o Part of the same events leading up to the same ultimate injury for which damages
are sought?
o Closely connected in both time and location?
o Similar in character and general subject matter?
Adding new defendant (if amendment is time barred):
o Different from changing defendant.
o Entirely new claim and less likely to relate back unless they knew about the action
and knew that they should have had action brought against them.
o But they may be entitled to repose if they thought the plaintiff made a choice only
to sue the originally named defendant.
o Potential that they can be added through compulsory joinder if the original
defendant could not pay the entire claim and they were liable in some regard.
Can change the defendant party if:
o 1) Amendment asserts a claim that arises out of the same transaction or
occurrence as the original Compliant, because it is the same occurrence, with only
the name of the defendant being changed. Needs to have been mistake, not bad
choice.
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o Adding new defendant after statute of limitations (as opposed to changing)
implies it was a bad choice not mistake.
2) Within 90 days of filing the Complaint, the new defendant was aware (or
should have been aware) of the action and realized that but for a mistake in
identity the action would have been brought against it.
All we care about is defendant’s state of knowledge. (Krupski) 15(c)(1)(c)
o Even if plaintiff was negligent in making the mistake, and caused delay,
that doesn’t matter.
Rule mandates relation back once rule requirements are satisfied; no discretion for
district court to evaluate equity if elements are satisfied.
[Some potentially productive changes: notwithstanding the other elements, if the
mistaken defendant gave notice of who the actual defendant was, then the plaintiff
should have 90 days to amend or it would not relate back. May want to include
language so that if the original mistaken defendant was negligent in providing a
new defendant who was not in fact the correct party to bring an action against,
that could be a claim.]
Effects of Judgment:
Altering a judgment:
o Excusable neglect? (timing on a Complaint/summons, responding to discovery
request, etc.)
 Judge Levy: mistakes happen
 Rectify promptly?
 Was it deliberate plan by counsel to make error?
 Party’s position on merits viable?
 Will party that got judgment be prejudiced by altered judgment?
o Newly discovered evidence – courts reluctant to grant it.
 If it could not have been discovered in time to move for a new trial under
Rule 59(b) – provides that a new trial motion must be filed no later than
28 days after entry of judgment.
 Has to be a fact that existed at time of trial.
 Unlikely to grant relief unless court thinks this specific evidence would
have yielded different result
o In the case of fraud, misrepresentation, or misconduct, party has one-year to move
for relief.
Preclusion:
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If decision is just on basis of jurisdiction, no preclusion.
o If dismissed due to poor pleading, court can give leave to replead.
Claim preclusion: (Taylor v. Sturgell)
o Same parties? (if no, no claim preclusion)
o Was party adequately represented by someone with same interests who was a
party?
 Pre-existing substantive legal relationship?
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Same relief?
Same core of operative facts?
Could suits have been brought together?
Proving different things?
Incentive to hold back: can try in two different courts with a dif. plaintiff
Issue preclusion:
o Has issue (not just an argument) been litigated in prior action?
o Has issue been determined in prior action?
 General verdict may prevent preclusion from applying
o Was determination essential to the judgment?
 If party wins at trial on two issues that would single-handedly win case,
not appealing doesn’t matter.
o Is it the same issue in both actions?
o Exceptions to issue preclusion: page 82 of notes
Non-Mutual issue preclusion:
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Consideration for preclusion: for the loser who was in, or the winner who was out,
did they affect joinder or intervene? Did they have notice about the suit (publicity?)
or similarly situated parties? Could they anticipate it’d affect interests? Capitalize
on advantages of staying out?
If neither party in Action 2 was a party in Action 1, no issue preclusion.
o Stare decisis effect but not prevented from bringing claim.
If the party against whom preclusion is sought was not in Action 1, no preclusion.
o “A” wins judgement in Action 1 then seeks to use that case as preclusion in a suit
against party that wasn’t involved – not allowed. (Defensive mutual preclusion)
If the party against whom preclusion is sought was in Action 1, can be preclusion.
o “A” lost judgement in Action 1, and a new party seeks to use that case for
preclusion in a new suit – might be allowed (Offensive mutual preclusion)
Factors influencing preclusion:
o Could party seeking to invoke preclusion have joined this party and chose not to?
 Can’t compel intervention.
 Or were they in different state courts? Can’t join those. But different
federal courts? Can consolidate those.
o Mendoza Rule: US cannot be subjected to non-mutual offensive preclusion
 Can’t lose on an issue and have new plaintiffs come and use preclusion on
it. Likely an interpretation of federal law. Stare decisis important though.
“B” WAS a party (or privy)
“B” WAS NOT a party (or
privy)
“A” Won
“A” Lost
Preclusion against “B”
No preclusion – due process
concern
Preclusion against “A”
Non-mutual preclusion
situation
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Joinder:
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Voluntary:
o Can issue crossclaim if it arises out of same transaction or occurrence.
 Must arise from same aggregate and operative facts.
o Impleader: if I’m liable to him, you’re liable to me.
 Claim must be contingent upon result (Mitchell v. Hood)
 Injuries occur regardless of whether other party is liable to you, then not
impleader.
Compulsory:
o If absent a third-party complete relief could not be accorded, should pursue
joinder.
 If third party is left out, could there be “inconsistent obligations”
resulting from two different lawsuits?
 Could party not be able to pay all of damages?
 If feasible, should use joinder.
 If not feasible (jurisdictional issues, venue issues, etc.) then court needs to
weigh whether it is best to proceed anyway.
o Joint tortfeasors do not necessarily need to be joined (Temple v. Synthes Corp)
Intervention:
o Should be allowed to intervene if the action impairs or impedes movant’s ability
to protect its interests.
 Must be timely (as we learned from the blatantly wrong and outrageous
decision in the MI women’s tennis case).
o Cannot be compelled to intervene.
 But, if for an employment discrimination case, those who had notice of
potential judgment that would impact their rights, but chose not to
intervene, cannot challenge rulings in court.
 Only if could have intervene/rights were represented.
Class Actions:
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Four prerequisites to certify a class. Need:
o Numerosity: joinder of all would be impractical, so need a class
o Commonality: common questions of fact or law
o Typicality: representatives’ position with respect to dispute is typical of the class
o Adequacy: representatives will fairly and adequately represent the class
23(b)(1)
o More rare.
o (b)(1)(B): exhaustible fund
23(b)(2):
o Pursuit of injunction or declaratory relief (commonality is an issue, Judge Levy)
o Notice may be ordered
23(b)(3)
o Pursuit of damages
o Notice is required
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Settlement:
o Cannot settle class action without approval of the court
o Notice to the class about settlement
o 23(b)(3) class members have opportunity to drop out of class and pursue claims
on their own
o Can settle and certify at same time
o Children can’t be forced into a class – can’t waive right to bring own claim
In re Flint Water Case:
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Motion for final approval of a partial settlement providing compensation to tnes of
thousands impacted by exposure to contaminants.
Comprehensive compensation program set forth applies to members of a class and nonclass individuals.
After lengthy negotiations, plaintiffs obtained the maximum amount of compensation that
the settling defendants were able and willing to offer. (According to Sen. Levin and Ret.
Judge Harwood, the mediators)
o Parties acting at arm’s length: both in their own best interests negotiating fairly
Each subclass approved and found it was good settlement. Some subclass examples:
o Older Children’s Injury (ages 7-17)
o Future Manifesting Injury
o Property Damage
o Business Economic Loss
o Adult Injury
Amended Settlement Agreement (ASA) outlines procedure to manage funds and their
allocation to various plaintiffs while considering their diverse needs. Appoints a Claims
Administrator.
Members of settlement class and individual plaintiffs who wish to participate in
settlement must submit Registration Form to Claims Administrator.
Settling Defendants have right to “walk away” from the ASA. (?)
Six sub-qualified settlement funds that claimants can select:
o Minors 6 yo or younger on date first exposed to Flint water
o Minors 7-11
o Minors 12-17
o Adults (18+)
o Residential property owners/renters
o Businesses that experienced property and economic losses
Individuals treated the same in terms of their eligibility to qualify for a Settlement
Category, regardless of whether they are represented by their own counsel or whether
they are members of the Settlement Class proceeding with or without the assistance of a
lawyer.
ASA establishes a resolution process for disputes and disagreements arising under
Settlement Agreement.
Releases settling defendants from:
o claims, notices, demands, causes of action, known and unknown
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o damages whenever incurred and liabilities of any nature, whatsoever,
o liability arising from the alleged acts or omissions of any claimant plead in their
complaints.
Over 50,000 unique claims.
ASA outlines procedures to object to the settlement, but ultimately “it is up to the Court
to determine whether any Claimants who fail to follow these procedures waive these
rights.”
Fairness hearing on settlement because part was a class action, which requires review of
settlements, and partly because minors were involved, and that requires supervision.
Typo on page 36, line 12 “Marcy 22, 2021”
Objections Based on compensation Grid:
o Most common objection to ASA was inclusion of bone lead level testing in
Compensation Grid
o Claimants w/ specific proof can obtain larger award than those w/ little to no
proof
o Objectors claim that XRF device used for bone lead level testing is not meant for
use on humans, but the device was modified to be safe for human use (no longer
“as sold out of the box” which was part of instruction not to use on humans).
 No FDA approval for use on humans, but also no approval required.
o Use of XRF has passed IRB tests, and while no IRB test for this settlement, not
necessary.
o Radiation exposure from these XRF tests is about the same as breathing for 12
hours…negligible.
o Objectors pushed for an evidentiary hearing but that was rejected. Not necessary
to approve a settlement and objectors didn’t present “a colorable claim that the
settlement should not be approved.”
 Unless objectors have made a clear and specific showing that vital
material was ignored by the District Court, there is no need for the District
Court to hold an additional evidentiary hearing on the propriety of the
settlement.
Objection that Napoli testing program violated law (unsubstantiated and likely harmful)
o No law about it. MIOSHA did not investigate, it inspected. Failure to register a
device with MIOSHA does not mean it is unsafe.
Objection to XRF bone lead level testing because it has no medical purpose
o Settlement purposes only, not for medical diagnosis.
o No one is required to use XRF test.
o Linking a class member’s level of proof to their award is entirely appropriate.
Objections arguing Napoli program constitutes an undisclosed research project
o XRF is just one of many methods to determine individual’s potential recovery
Objections claiming bone lead level testing is main method of recovery
o Not the only option – blood lead level test or bone lead level test.
 Also, one of many criteria used to determine compensation grid category.
o Half of the compensation grid categories don’t include bone lead level test.
Availability of XRF tests and $500 cost of tests
o Can use a test from 2014, so pandemic not a good excuse.
o Napoli program offered tests, many people no-showed.
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Signing a release form does not nullify settlement
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