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Law Outlines Civil Procedure Outlines

Trial Outline

Updated Trial Notes

Civil Procedure Outlines

Civil Procedure

Approximately 35 pages

A highly detailed, attractively formatted outline for 1L Civ Pro, including jurisdiction. The material is not specific to any jurisdiction, but is rather an overview of civil procedure in the federal courts. I discuss the relevant Federal Rules of Civil Procedure (2013) as well as federal statutes dealing with jurisdiction and other topics. The course was based on Yeazell's Civil Procedure, 8th.

The notes are divided into the following sections:

1. Pleadings
2. Jurisdiction
3. Joinder
4...

The following is a more accessible plain text extract of the PDF sample above, taken from our Civil Procedure Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

  1. TRIAL

    1. Trial by Jury

In order to get a jury trial, two conditions must be met:

  • (1) At least one party asks for a jury in writing under Rule 38 or Rule 5(d) within 14 days.

  • (2) It is a case of the sort in which parties are entitled to a jury (i.e., not in equity, allowed by CL in 1791, or otherwise provided by statute).

The right to trial by jury is waived unless it is timely demanded and properly served. Once a jury trial is granted, it may only be withdrawn with both parties’ consent.

  1. 7th Amendment

  • Not all cases are triable by jury (in equity, less than $20 in dispute, or if the right of action was created after 1791).

  • The test:

    • Would a jury have been allowed under CL in 1791?

    • Is there an analogous case to reference?

    • If there is no analogy, then the court looks at the type of remedy requested.

  • If there is a blend of equitable and legal claims, the judge should let the jury decide first, and then make his own determination on the questions of equity.

    1. Rule 38: Right to Trial by Jury

  • (b) Demand: a party may demand a jury trial by serving the other party its written demand no later than 14 days after the last pleading has been submitted.

  • (c) Specifying Issues: a party may specify which issues it wants tried by the jury. If party A wants a jury trial on some issues and party B wants a jury trial on all issues, B may request a jury trial on all issues within 14 days of being served A’s request for a jury trial.

    1. Rule 47: Jury Selection

      1. Voir Dire

This is an opportunity for judges and attorneys to vet potential jurors.

  • If a juror is dishonest during voir dire, an attorney may get a new trial by showing:

    • A juror failed to answer a material question honestly during voir dire and

    • A correct response would have provided a valid basis for challenging that juror (not harmless).

      1. Peremptory Challenges

  • Rule 47(b): Per 28 USC § 1870, parties get up to three peremptory challenges to strike jurors at their whim.

  • Even though a party need not explain its basis for using a peremptory challenge, it may not use a peremptory challenge on the basis of race or gender. If the other party suspects a pattern in the use of peremptory challenges, it may make a Batson Challenge, which forces the other party to articulate a non-race or gender-based reason for challenging jurors.

    1. Challenges for Cause

  • Parties may make unlimited challenges for cause, if they can show the juror is biased against their party due to the subject matter, or if the juror has too much prior knowledge.

  • It is not sufficient that a juror merely be biased; it must also somehow impede the juror’s ability to follow the court’s instructions and make an impartial decision in light of the evidence.

    1. Rule 51: Jury Instructions

  • (a) Requesting instructions.

    • (1) At the close of evidence, a party may file a written request for jury instructions.

    • (2) After the close of evidence, a party may

      • (A) request instructions on an issue not anticipated earlier; and

      • (B) request instructions on any issue with the court’s permission.

  • (b) The court must:

    • (1) Inform parties of its instructions before making them;

    • (2) Give parties a reasonable time to object; and

    • (3) Instruct the jury anytime before the jury is discharged.

  • (c) ((Objecting to jury instructions))

  • (d) Error: erroneous jury instructions can be declared only if the party objected.

    1. Judges

      1. Judicial Appointments

  • Federal judges are nominated by the president and confirmed by the senate; can only be removed by impeachment.

  • State judges are appointed by the governor OR elected; in any event, they are subject to reelection.

    1. Striking Judges

      1. 28 USC § 455

Judges are usually under a duty to recuse themselves if they believe they might be prejudiced, and to maintain a list of parties with whom they may have a conflict of interest. These are only rarely invoked because they offend judges. Among other reasons, a judge can be stricken:

  • Where the judge has served as a lawyer in the matter in controversy;

  • Where the judge has expressed an opinion as to the merits of the case prior to hearing it;

  • Where the judge or his family has a financial interest in one party;

  • Wherever their impartiality might be questioned.

Caperton v. A.T. Massey: Court found a rare exception where a state court judge (not subject to § 455) was obliged to recuse himself by the Due Process Clause. However, the court stressed that this is not a standard to be widely applied.

  1. Rule 52: Findings and Conclusions of the Court

In a bench trial, the judge must state findings of fact specially and conclusions of law separately.

  1. Rule 50: Judgment as a Matter of Law (JML)

Like summary judgment, JML takes the case away from the jury because, as a matter of law, no reasonable jury could decide the case any other way. The court views the evidence in the light most favorable to the nonmovant.

  1. Standard for JML

  • (a)(1) If the court finds a reasonable jury would not have a legally sufficient evidentiary basis to find for the party, the court may resolve the issue against the party and grand a motion for JML.

    • Did the nonmovant fail to present any evidence in support of an essential element of their case?

    • Is the evidence presented by the other party so compelling and overwhelming that no reasonable jury could find for the other side?

      1. Renewed Motion for JML (JNOV)

  • (b) If JML is denied, the time limit for filing a new JML is 28 days after the jury verdict. (It can’t be the first time the party is moving for a JNOV).

POLICY: Does JNOV fly in the face of the 7th Amendment? 7th says that the verdicts of juries are not reviewable and that we have a right to trial by jury. We get around this by requiring a party to move for a JML before the verdict if...

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