CIVIL PROCEDURE CLASS 27

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CIVIL PROCEDURE CLASS 27

• Professor Fischer
• Columbus School of Law
• The Catholic University of America
• October 24, 2005

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WRAP UP SUMMARY JUDGMENT

• Form of pretrial adjudication
• Shifting burdens of production on motion
  depending on whether moving party bears burden of
  production at trial

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APPEALABLITY OF SJ ORDERS

• Order denying motion
• Order granting motion

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MOTION FOR JUDGMENT AS A MATTER OF LAW

• Also called directed verdict
• Compare to summary judgment motions

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PENNSYLVANIA RR v. CHAMBERLAIN (1933)
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HYPO

• Assume that Bainbridge claimed to be standing
  right next to where death occurred and testified
  to having directly witnessed the collision, but D
  presented 25 witnesses, including a busload of
  visiting priests, who contradicted Bainbridges
  story.
• Should the court direct a verdict for the RR?

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COMPARE DIRECTED VERDICT AND SJ MOTIONS

• Why are courts often more reluctant to grant
  summary judgment than judgment as a matter of law
  under Rule 50(a)?

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IS A DIRECTED VERDICT CONSTITUTIONAL?

• The Seventh Amendment to the U.S. Constitution
  providesIn Suits at common law, where the value
  in controversy shall exceed twenty dollars, the
  right of trial by jury shall be preserved, and no
  fact tried by a jury, shall be otherwise
  re-examined in any Court of the United States,
  than according to the rules of the common law.

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IS A DIRECTED VERDICT CONSTITUTIONAL?

• The U.S. Supreme Court has ruled that the use of
  a directed verdict motion does comport with the
  Seventh Amendment (Galloway v. U.S. , 319 U.S.
  372 (1943)).

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IS A DIRECTED VERDICT CONSTITUTIONAL?

• Why? Because the Seventh Amendment just PRESERVES
  the right to trial by jury where originally
  available in suits at common law (as at 1791
  date of Seventh Amendments ratification), and,
  according to the Supreme Court, common law
  historically had a procedure by which judge could
  determine that the evidence was insufficient for
  the jury to consider it.
• Well consider the right to jury trial in civil
  actions in greater detail later

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Rule 40 Assignment of Cases for Trial

• District court can formulate its own rules for
  placing cases on the trial calendar

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FACTFINDER

• The factfinder in a civil trial can be either a
  jury or the court (the judge).
• We will later learn the rules for when there is a
  right to civil jury trial under the Seventh
  Amendment
• Sometimes judge uses an advisory jury whose views
  are not binding like a regular jury.
• What is the smallest possible size for a jury in
  a federal civil action? Whats the applicable
  rule?

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JURY SELECTION BIG PICTURE

• Jury procedures attempt to uphold the
  constitutional guarantee in the Due Process
  Clause that all civil litigants shall have a fair
  trial
• This requires a fair and impartial jury.

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VOIR DIRE (FRCP 47)

• Whats a voir dire?
• Who conducts the voir dire?
• What are the two types of challenges that can be
  made to jurors in federal court? When can each be
  made? How many such challenges can be made?

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Number of Challenges

• Challenges for Cause unlimited (Rule 47(c )
• Peremptory Challenges (Rule 47(b) and 28 U.S.C.
  1870) 3 for each party (generally) see CB p. 456

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Race and Peremptory Challenges

• Can a peremptory challenge be used to exclude a
  juror on the basis of race?
• Cite authority for your answer.

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Challenging Peremptory Challenges (Batson test)

• What should a party/attorney do if s/he believes
  that a peremptory challenge is based on race?
• Is the Batson test effective?

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Batson Rule Extended to Gender-Based Peremptory
Challenges

• In J.E.B. v. Alabama, 511 U.S. 127 (1994)
  (violation of Equal Protection Clause of
  Amendment XIV)
• There is a question as to whether other groups
  should be entitled to Batson protection
  (Catholics? Deaf people? Hispanics? etc.)

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CIVIL JURY TRIALS

• After choosing a jury, the procedure is usually
  as follows (depends on local rules)
• 1. Ps opening statement (usually goes first)
• 2. Ds opening statement (option to do this after
  Ps direct evidence)
• 3. P presents direct evidence (D can
  cross-examine)
• 4. D may move for a directed verdict
• 4. D presents direct evidence (P can
  cross-examine)
• 5. P presents rebuttal evidence
• 6. D presents rebuttal evidence
• 7. P or D may move for a directed verdict.
  Assuming no successful directed verdict motion,
  closing arguments (usually P speaks first and
  last)
• 8. Jury instructions (judge could also instruct
  in beginning and at end)

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BENCH TRIALS

• Less formal procedure than jury trials
• Often, the judge does not require/permit opening
  statements or closing arguments. Why do you
  think this is the case?
• Obviously, there is no need for jury instructions
  in a bench trial!

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EVIDENCE RULE 43

• Types of evidence include
• 2. Deposition testimony
• 3. Documents
• 4. Other relevant items
• Elaborate rules of evidence apply to determine
  what is and what is not admissible
• There are Federal Rules of Evidence
• Many states follow these federal rules

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CLOSING ARGUMENTS

• Because evidence is presented in a piecemeal
  fashion, it is hard for the jury to get a
  coherent picture of the case
• The purpose of closing arguments is to give the
  jury such a coherent picture of one partys case

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BIG PICTURE Judicial Control of Juries in Jury
Trials-

• 1. Jury Instructions
• 2. Special Verdicts
• 3. Bifurcation/Trifurcation
• 4. Remittitur/Additur
• 5. J.N.O.V.
• 6. Order for New Trial
• 7. Order to Vacate Judgment

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JURY INSTRUCTIONS (Rule 51)

• What is a jury instruction?
• When are jury instructions given?

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JURY DELIBERATIONS

• Jury retires to deliberate, usually under the
  supervision of the bailiff
• In civil cases, jurors usually are permitted to
  leave for the night.
• However, when jury deliberations are recessed,
  the judge will tell the jury not to discuss the
  case to anyone and not to read media coverage of
  the case

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VERDICTS

• What is a general verdict?
• What is a special verdict? SEE FRCP 49
• What is a general verdict with interrogatories?
  SEE FRCP 49
• What are the advantages and disadvantages of
  special verdicts?
• Sometimes the judge polls the jury to make sure
  the verdict is agreed on by the required number
  of jurors
• How many jurors must agree on the verdict in
  federal court? SEE FRCP 48

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JURY DEADLOCK

• What happens if the jury cannot agree on a
  verdict?

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BIFURCATION

• FRCP 42(b)
• Bifurcation liability and damages
• Trifurcation causation, liability, and damages
• What should a court take into consideration in
  determining whether to bifurcate a trial?
• Must birfucated trials be tried before the same
  jury?
• What are the advantages of bifurcation?
• What are the disadvantages of bifurcation?

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REMITTITUR/ADDITUR

• What is remittitur?
• What is additur?
• Is remittitur constitutional? Why or why not?
• Is additur constitutional? Why or why not?