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Chapter 19  nineteen  post trial procedures civ lit 2nd
 

Chapter 19 nineteen post trial procedures civ lit 2nd

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    Chapter 19  nineteen  post trial procedures civ lit 2nd Chapter 19 nineteen post trial procedures civ lit 2nd Presentation Transcript

    • Civil Litigation:Process and Procedures Chapter Nineteen Posttrial Procedures
    • Termination of Litigation  Motion for judgment on the pleadings  Motion for summary judgment  Default judgment  Settlement & waiver or dismissal  Bench trial verdict  Jury verdict  Final appellate rulingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
    • At the Outset of Litigation  Motion for judgment on the pleadings  Claim of judgment as a matter of law  Considers all the pleadings, finds no material fact in controversy  Motion for summary judgment  Similar claim of a right to judgment as a matter of law, no disputed facts  The court can go off the pleading & consider other materials, such as discovery documentsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
    • Default and Verdict  Default judgment may be entered upon the request of the π if the Δ fails to answer & defend the lawsuit  A verdict is the decision of the jury resulting in a determination of liability and/or damagesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
    • Entry of Judgment  The outcome is entered on the docket of the court  The date of entry is the starting date for time limits on post-trial proceedings  This gives public notice of the trial results  The judge may orally enter the judgment or may require a written order, prepared in advanceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
    • Entry of Judgment FormCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
    • Trial Errors  Once judgment is entered, post-trial relief must be considered  Losing party will review the trial for errors (paralegal’s trial notes help here)  Winning party may consider appealing the amount of the win  Appealable error may be based on the claim that the verdict is unsupported by the evidence  The claim may be that the judge erred in admission of evidence and/or jury instructionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
    • Evidentiary Error  Appeal is based on the judge’s decision to admit or exclude evidence  May be based on the type of evidence, e.g., hearsay, or the failure to properly authenticate evidence  The appealing attorney must have objected at the time  This preserves the record for appeal by bringing the alleged error to the judge’s attention while there is still time to “cure” itCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
    • Jury Instructions  The legal team prepares proposed jury instructions & submits them to the judge – pretrial conference, supported by a memorandum of law  The judge (trier of law) determines which ones are the proper statement of the law  The judge tells the jury what law to apply to the facts they determineCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
    • Verdict Unsupported by the Evidence  Jury error  Fails to properly consider the evidence  Misapplies the law  May have made an emotional response to the evidence, rather than an objective analysis  Not the same as finding one side more credible than the otherCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
    • Harmless Error  To be the foundation for an appeal, the appealable error must  Have resulted in harm or prejudice to the appellant  Be severe enough to have altered the outcome of the trial  Harmless error is a trial error that did not affect the outcome of the trialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
    • Clear Error  Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228 (7th Cir. 1988) “[T]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week old, unrefrigerated dead fish.”Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
    • Motion for Judgment as a Matter of Law  Also, judgment notwithstanding the verdict, or judgment n.o.v. (non obstante veredicto)  “No reasonable minds could disagree,” and yet the jury found  Contrary to the weight of the evidence  In the absence of contradictory evidence  Judge renders a judgment contrary to the jury’s verdict, as a matter of lawCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
    • Motion for a New Trial  Made to the trial judge, instead of an appeal  An error was made during trial  By the judge or jury  So prejudicial that it constitutes a denial of justice  It is not clear that the other side would win, so a new trial (with the error corrected) is requiredCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
    • Motion to Mold the Verdict  Asks the judge to recalculate the amount of damages determined by the jury  Remittitur – damages found were beyond the scope of evidence or damages claimed, and the Δ is entitled to a reduction in the amount awarded  Additur – although the π “won,” the damages awarded did not correspond to undisputed evidence of damagesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
    • Local Rules  Some jurisdictions require a review of the judgment before it is final and appealable  Judges, frequently 3, sit en banc for the review  Some jurisdictions require that a bench decision be accompanied by findings of fact & law before it is finalCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
    • Allowable Costs  Federal Rule 54 permits the prevailing party be allowed costs  28 U.S.C. 1920 specifies  Fees of clerk, marshal, court-appointed experts, witnesses, interpreters  Court reporter fees for parts of the transcript required by the trial, printing, copies of necessary papers, docket fees, other interpretation service feesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
    • Appeal  Right to appeal to an intermediate appellate court (unless there is none in that jurisdiction – then to high court)  Governed by rules of appellate procedure  Final judgment required  Not interlocutory, or interim, except rarely  A decision that allocates the responsibilityCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
    • Appellate Procedures  Appellant files a notice of appeal  May include several issues (shotgun)  May concentrate on a single issue (rifle)  Other side may file a cross-appeal if not entirely satisfies (won, but not enough damages awarded)  Must consider federal or state rules & local court rules for format, timingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
    • Appellate Rules  May need to research, particularly in a foreign jurisdiction (local rules may vary from district to district within a state)  Comply fully to avoid having the appeal quashed (dismissed)  Margins & stapling  Weight, color & size of paper, cover  Type fonts & size, etc.Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
    • Notice of Appeal  Federal requirement  Clerk of district court  30 days from entry of judgment, unless there are post-trial motions pending  Can ask for an extension if there is a reasonable basis for the requestCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
    • Notice of Appeal FormatCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
    • Record on Appeal  The appellant assembles the record for appeal, provided to the clerk of court  Original papers (pleadings, motions, briefs, etc.) & exhibits  Certified copy of the docket entries  Pertinent portions of the trial transcript  The clerk of court will forward the record to the court of appealsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
    • Trial Transcript  The appellant orders a transcript of the trial, or specific portions, pays for it & includes it in the record  The appellee will review the sections ordered & may order additional sections for context  The court reporter has 30 days (fed.) to submit the transcript to the clerkCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
    • Scheduling Order  Some circuits permit the clerk of court to issue a scheduling order  Sets out the timelines for  Completion of the record (including supplements)  Briefs  Oral arguments  Other requests, motionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25
    • Appellate Briefs  Written arguments setting forth  The error claimed  The legal authority relied upon  Brief components are generally  Cover, Table of Contents, Table of Authorities  Facts & allegation of jurisdiction  Issues presented & short answer  Argument & conclusion  Appendix & Certificate of ServiceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 26
    • Paralegal Role  Check all applicable rules for  Format & contents  Deadlines (calendar reminders)  Page limitations, number of copies required  Draft portions of the brief (generally not the argument)  Assist in legal research, cite-checkingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 27
    • Filing and Service  Some jurisdictions require paper copies  Some courts permit electronic service  Parties agree to waive service of paper copies  Brief is in a specified native format (e.g., PDF)  If on a portable storage device, it must be well-labeled  Completed Proof of Service still requiredCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 28
    • Research and Writing  Paralegals should be able to perform basic legal research, from books or online  Find cases, statutes, constitutional provisions, regulations, court rules  Locate pertinent secondary authority  Properly cite, according to the rules of the jurisdictionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 29
    • Citation Checking  Verifying citations to both the trial record and legal authority  Check that the cites are accurate by page, line, paragraph and/or volume  Check that they comply with the preferred citation format for that court  Check that quotations are accurate  Determine that the reference actually stands for the legal principle attributed to it  Validate sources, to determine they are still “good law”Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 30
    • Oral Arguments  May not be required  Attorneys are given the opportunity to answer questions raised by the brief, but not simply repeat material  The attorney will attempt to illuminate the reasons for a positive decision  Paralegals may serve as “sounding boards” for these arguments, due to their familiarity with the caseCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 31
    • Opinions of the Appellate Court  The appellate panel (usually 3 judges) will take the matter under advisement  They will study the briefs, discuss the oral arguments and confer before voting  One judge will be assigned to write the opinion of the court  Concurring opinion – agrees with the outcome, but not the reasoning of the majority  Dissenting opinion – disagrees with the outcomeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 32
    • Rulings of the Appellate Court  Affirm – determines no error occurred, and the lower court decision stands  Reverse – rarely used, determines the judgment was entered wrongly against the appellant, who should have won.  Remand – an error is found, but the case is sent back to the trial court to re-try the case with the error corrected to find out if the outcome will changeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 33
    • Highest Appellate Court  Not all jurisdictions have a 3-tiered system  If there is a higher court (e.g., U.S. Supreme Court), they may grant the right to hear an appeal from the intermediate court decision  Permissive, not an appeal of right  Petition for a hearing  May be granted (such as the federal grant of certiorari)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 34
    • Alternate Dispute Resolution  Settlement is possible even after a judgment has been entered  Avoid post-trial motions & delays  Avoid the time & expense of appeal  The losing party may offer an immediate payment, or better- structured payment, of a smaller amount than the judgmentCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 35