Agenda for 10th Class
• Admin
– 4 Handouts
• Langbein, “German Advantage in Civil Procedure”
• 1995 Exam, Part II
• Polinsky on Settlement
• Slides
– Name plates
• Intro to
– New Trial
– Appeals
• Review of Sanctions
• Summary Judgment
– Celotex
– Bias
• JMOL
– Penn
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Assignment for M 10/21 I
• Appeals
– Skim FRCP 61; 28 USC 1291, 1292, 2111
– Skim Yeazell 674-703 (skip cases)
– Read carefully Yeazell 703-713
– Questions to think about
• Go back through all the cases read so far in Civil Procedure
– If the case was decided by an appellate court, what standard of
review did the court use and why? If the case is not explicit about
the standard of review, what standard should the court have used?
– If the case was decided by a trial court, what standard of review
should an appellate court use if the issue(s) resolved in the case
were appealed? Note that if more than one issue is appealed, the
appellate court may apply different standards of review to each
issue.
• Briefly summarize Anderson and Harnden
– In your summary of Harnden, include an answer to Yeazell p.
712 Qs 1f, 2
• How could you argue that the district court judge’s error in Harnden
was not harmless? In doing so, consider why it is important that an
expert report be submitted in the form of an “affidavit or sworn 2
statement.”
Assignment for M 10/21 II
• Appeals
– It is relatively easy for a district court’s decision to grant JMOL to be
overturned on appeal (because the standard of review is de novo) but
relatively hard for a district court’s decision to grant new trial to be
overturned on appeal (because that decision is reviewed under the more
deferential “abuse of discretion” standard” and may not be reviewable at
all until after the second (or third or fourth) trial). Does this make sense?
Why or why not?
– Assuming that the jury returned a verdict for the plaintiff and that the
defendant moved for JMOL and new trial, who can appeal in each of the
following 4 situations and when.
• Judge grants JMOL and conditional new trial
• Judge grants JMOL and denies conditional new trial
• Judge denies JMOL but grants new trial
• Judge denies JMOL and denies new trial
• German Civil Procedure
– Handout. Langbein, “German Advantage in Civil Procedure”
– Questions on last page of that handout
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Assignment for T 10/22 I
• This is one of the few times when it might be advantageous to read/work
ahead
• 1995 Exam, Part II
– I encourage you to write/type out answer
• I will set up appointments to review
– If you start writing out your answers before M 10/21, please be sure to
revise after class
• Settlement & ADR
– Yeazell pp. 523-24,531-44, 548-50, 555-58
• You do not need to read these materials carefully
– Handout (Polinsky)
• If you are not quantitatively inclined, you will need to read this
carefully. Polinsky is extremely clear, but it will take time
– Questions on last page of that handout
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Assignment for T 10/22 II
• Settlement & ADR (continued)
• A Civil Action through p. 448
– In what ways does A Civil Action confirm the validity of Polinsky’s
economic model of settlement?
– In what ways does A Civil Action contradict Polinsky’s economic
model of settlement or suggest that the real world is more complex
than that model?
– Finish A Civil Action by Monday, October 28
• Pay special attention to fees
• Given the settlement, how did they calculate how much Schlichtmann
and the other lawyers received?
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New Trial
• After trial, either party may make a motion to the district court judge for new
trial
– If granted, trial starts all over again with new jury
• Two reasons for new trial
– Error in trial
• Improper jury instructions, improper exclusion of evidence, improper
argument by counsel etc.
• Error must not be “harmless”
– Verdict contrary to the great weight of the evidence
• Easier standard than JMOL
• Judge can evaluate credibility of witnesses
• In theory, could have series of new trials
• Note. New trial is also remedy ordered by appellate court
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Conditional New Trial
• Party can ask for new trial at same time as ask for JMOL
– And nearly always a good idea to do so
• Of course, party prefers JMOL
– But new trial is good back up
• If judge grants JMOL, might think that should not rule of new trial
– But Rule 50(c) says that judge must “conditionally rule” on new trial, even
if grants JMOL
• That is, judge must say, if JMOL is reversed on apeal, then I would
(or would not) grant new trial
• Gives party a chance to challenge new trial on appeal at the same
time it challenges JMOL
– Saves time and money
• Almost always appropriate to grant conditional new trial, if JMOL granted
– Because standard to grant new trial (against great weight of the
evidence) is lower than standard for JMOL (no reasonable jury)
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Intro to Appeal I
• 4 questions: who, when, what, how
• Who can appeal
– Side who lost below
– Can only appeal to change judgment, i.e. relief or lack thereof
• More or less damages, different injunction
– Cannot appeal just to change reasoning
• When can appeal
– Can only appeal final judgment
– But when judgment is final, can appeal all issues
– Examples of final judgments
• Ordinary judgment, Grant of 12(b)(6), grant of SJ, grant of JMOL,
– Examples of non-final judgments
• Denial of 12(b)(6), denial of sanctions, discovery rulings, denial of SJ,
grant of new trial, denial of JMOL,
– Interlocutory appeals allowed if both District Court and Appellate Court
agree. 28 USC 1292(b)
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• Some other exceptions
Intro do Appeals II
• What can appeal?
– Issues which are neither waived nor harmless
– Waiver
• Can only raise issue on appeal if raised issue properly in trial court
• Cannot challenge legal theory, if did not challenge in answer or
12(b)(6) motion
• Cannot challenge sufficiency of evidence, if did not make JMOL
motion
• Cannot challenge particular evidence if did not object at trial (or
before)
– Harmless Error
• Court of appeals only overturns judgment if error is not harmless
• Court has to decide whether outcome at trial is likely to have been
different if error was not made
– Did error make real difference at trial?
• How does court of appeals review district court decisions?
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– Standards of review (next slides)
Appeal: Standards of Review I
• De novo (non deferential)
– Court of appeals examines issue afresh and reverses if it disagrees with
the trial court, even if it thinks that issue was close call and trial court
decision had strong arguments to support it
– For legal issues
• 12(b)(6), SJ, JMOL
• Deferential standards
– Court of appeals only reverses if it thinks that the trial court made a
serious error
– Clearly erroneous standard
• For trial court determinations of fact, e.g. bench trial
– Abuse of discretion standard
• For trial court discretionary decisions
– Whether to sanction, if sanction not mandatory
– Amount/kind of sanctions
– Most evidentiary issues
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– New trial
Last Class
– Discovery sanctions
• Most sanctions, except 26(g), are discretionary
• Judges vary in their eagerness to grant sanctions
– No sanctions awarded in Phillips or A Civil Action
• But even if no sanctions awarded, judge may lose respect for side that
engaged in abusive behavior
– That may be worse than sanctions
– Sometimes strategically advantageous to violate rules or agreements
• But very dangerous
– How to handle problematic opposing lawyer in deposition
• Make record that can show judge later
• Stop deposition to make telephonic motion to judge
• Ask for appointment of discovery master
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Summary Judgment
• Judge enters judgment before trial if no genuine dispute over
material facts
– Judge does not evaluate credibility, but can decide
admissibility
• Parties attach evidence to their memoranda in favor and
opposing SJ
• In general, evidence needs to be admissible at trial
– Affidavits and deposition transcripts are exceptions, BUT
they are only considered if equivalent live testimony at trial
would be admissible
– This is meaning of 56(c)(2). “A party may object that the
material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.”
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Celotex I
• Celotex can prevail by pointing out that plaintiff has no admissible evidence
showing that Catrett was exposed to Celotex asbestos
– Celotex need not present evidence proving that Catrett was not exposed
Celotex asbestos
– More generally, party without the burden of proof (usually defendant) can
prevail by pointing out that plaintiff lacks sufficient evidence to prevail
• Party without the burden of proof need not present evidence that
proves it is correct
– Change from precedent. Adickes (1970)
• Part of trilogy of cases in 1986 that made SJ easier to get
– Pro-defendant
– Response to perceived caseload crises in federal courts
• Especially large number of cases involving asbestos
– Change in attitude toward plaintiffs from civil rights era
• Continues in Iqbal
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Celotex II
• Note that Supreme Court did not decide that Celotex entitled to SJ
– Decided that Court of Appeals used wrong criteria for deciding SJ
– Case reversed and remanded to Court of Appeals
– Court of appeals decided SJ inappropriate and remanded to DC
• Difficult evidentiary issues regarding admissibility of plaintiff’s evidence
– Hearsay. Out of court statement offered to prove truth of matter asserted
• But lots of exceptions
– Deposition of Catrett may be admissible, because unavailable for trial
• But only if defendant had opportunity & incentive to cross-examine
• CtApp on remand seems to state that Celotex did not have incentive
to cross-examine, because deposition was in worker’s comp case,
where stakes much lower
– Letter from former employer
• May be admissible under business records exception
• CtApp on remand said admissible because defendant failed to object
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– Letter from insurance company. Clearly hearsay
Summary Judgment Questions
• In Celotex, what could the plaintiff’s lawyer have done during discovery to
have had a better chance of defeating defendant’s motion for summary
judgment?
• In Celotex, what, if anything, could plaintiff’s lawyer do after the Supreme
Court issued its opinion in order to win the case for plaintiff?
• Yeazell pp. 588ff Qs 1c, 5
• Briefly summarize Bias. Be sure to discuss what evidence each side
submitted to the court? Why did the court grant summary judgment to the
defendant?
• In Bias, is it possible that the plaintiff would have prevailed at trial? How? If
your answer is “yes,” why wasn’t he able to defeat the summary judgment
motion?
• If you were the plaintiff’s lawyer in Bias, what could you have done which
might have helped you defeat summary judgment?
• Yeazell p. 596 Q4
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JMOL
• Basically SJ after trial over
• Powerful because allows judge to take case away from jury
– Or de facto to overturn jury verdict
• Like SJ, usually defendant’s motion
• Judge grants motion if no rational juror could decide in favor of plaintiff
– Like SJ, judge is not supposed to evaluate witness credibility
• Defendant must make motion before case submitted to jury
– Judge seldom grants (or even seriously considers) until jury returns
verdict
– After jury returns verdict, defendant renews motion for JMOL
• Note that, like SJ, can get partial JMOL
• Note that, like SJ, plaintiff can move for JMOL
– But rare
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JMOL Questions
• Briefly summarize Penn
– Your summary should include an answer to Yeazell, p. 652 Q 1a
• Yeazell p. 652ff Q1b-c,
• In Penn, what is the difference between a judge making a credibility
determination that Bainbridge was not a credible witness (which the judge is
not allowed to do) and a judge deciding that Bainbridge’s testimony was
“suspicious, insubstantial, and insufficient…simply incredible” (p. 652)
• In Penn, what arguments could plaintiff’s lawyer have made to have had a
better chance of defeating judgment as a matter of law?
• In Penn, if you think the Supreme Court erred in affirming the District Court’s
granting of JMOL, do you think new trial would have been appropriate?
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