Transcript de novo

Agenda for 14th Class
• Name plates out
• New Trial
Assignment for Next Class: Appeal
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 statement.”
– Questions on next slide
Assignment for Next Class: Appeal
• 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
Summary Judgment Timing
• In general, summary judgment motion is made after discovery is complete,
which is usually a few months before trial
• Party can move for summary judgment anytime between filing of complaint
and trial
– Rule 12(d) says that pre-answer motion which includes matters outside
the pleading should be treated as SJ motion
– Nevertheless, ordinarily, SJ motion filed before completion of discovery
will not be considered. See Rule 56(d)(1)
• Early SJ is only appropriate when party has conclusive evidence on decisive
– Defendant in promissory note case has canceled check
– Deposition indicates that condition precedent not satisfied
• Note also that court can grant partial summary judgment
– SJ on one issue, even if not decisive
– Plaintiff could get partial SJ on duty and proximate cause, leaving
negligence for trial
Judgment as Matter of Law (JMOL)
• Like SJ, usually defendant’s motion
• Defendant usually moves for motion at trial, after plaintiff has finished
presenting its evidence or after presentation of all evidence
– This used to be called “Directed Verdict”
– Judge almost always defers decision on motion until after jury delivers
• Otherwise, if reversed on appeal, will need to completely redo trial
• Also, if jury decides for defendant, then judge doesn’t need to rule at
• Nevertheless, for constitutional reasons, defendant must make
motion before jury decides
– 7th Amendment forbids overturning (“reexamining”) jury verdict
– But permissible not to send case in first place to jury
– If defendant makes motion before verdict and judge defers
decision until after verdict comes in, treated as if judge had never
sent case to jury.
Judgment as Matter of Law (JMOL)
• Defendant renews motion after jury verdict comes in
– Used to be called jnov (judgment non obstante veredicto / judgment not
withstanding the verdict)
• Judge grants motion if no rational juror could decide in favor of plaintiff
– Like SJ, judge is not supposed to evaluate witness credibility
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?
New Trial
• Two reasons
– 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
• Judge can evaluate credibility of witnesses
New Trial Questions
• Briefly summarize Lind
– Your summary should include an answer to Yeazell p. 662 Qs 1-3
• Is it easier or harder for a party to get JMOL or new trial? Does this make
sense? Why or why not?
Standards of Review
• 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
• Purely legal issues in discovery
• 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
– Bench trial
– Purely factual aspects of discovery
Standards of Review II
• Deferential standards (continued)
– Abuse of discretion standard
• For trial court discretionary decisions
– Whether to sanction, if sanction not mandatory
– Amount/kind of sanctions
– Some evidentiary issues
– New trial