WHERE WE ARE

1
WHERE WE ARE WHAT WERE DOING

• Pleading
• Pre-trial
• Trial Post-trial
• Appeal
• Scope of Review
• Harmless Error

2
APPEALScope of Review

• 3 Steps
• Identify action appealed from
• Procedural posture
• Distinguish type of issue
• Law-Fact-Discretionary
• Identify scope of review
• Varies by types of decision

3
APPEALScope of Review
The Legal Standards
Law De novo No deference to trial court
Fact Clearly erroneous FR 52 Defer to trial
court
Discretionary Abuse of discretion Defer to
trial court
Mixed questions of law fact Separate into law
fact Here lies swamp
4
APPEALScope of Review

• Problem Set
• Comments
• Questions

5
APPEALScope of Review

• Law
• Defining element defenses
• Many procedural questions
• Many evidentiary questions

6
APPEALScope of Review

• Law
• Defining element defenses
• Elements of negligence per se
• Validity of release
• Many procedural questoins
• Reqts for jurisdiction
• Reqts for sj
• Many evidentiary questions
• Reqts for waiver of doctor-pt privilege

7
APPEALScope of Review

• Fact
• Historical Facts re Elements
• What happened?
• Tort
• Was the autoclave unplugged?
• Did EH get hepatitis from the tattoo?
• Contract?
• What did the parties say to each other?
• What did the parties do to fulfill the contract?

8
APPEALScope of Review

• Fact
• Facts Relevant to Procedural Issues
• When was the summons handed to the defendant?
• Did defendant file answers to the
  interrogatories?

9
APPEALScope of Review Fact

• Anderson v. Bessemer City, p. 786
• FR 52(a)
• Clearly erroneous review
• Role of W credibility

10
APPEALScope of Review

• Exercise of judgment
• Forum non conveniens
• Weighing of factors
• Rules 11, 26(g) 37
• Whether to impose sanctions
• Rule 59
• Whether to grant motion for new trial

11
APPEALScope of Review

• Exercise of judgment
• Forum non conveniens
• Weighing of factors
• Rules 11, 26(g) 37
• Whether to impose sanctions

12
APPEALHarmless Error Rule

• So you think you won?
• Think again!