WHERE WE ARE & WHAT WE’RE DOING Pleading Pre-trial Trial & Post-trial Appeal Scope of Review Harmless Error

APPEAL Scope 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

APPEAL Scope of Review The Legal Standards Law = De novo Fact = No deference to trial court Fact = Clearly erroneous FR 52 Defer to trial court Mixed questions of law & fact = Separate into law & fact *Here lies swamp Discretionary = Abuse of discretion Defer to trial court

APPEAL Scope of Review Problem Set Comments Questions

APPEAL Scope of Review Law Defining element & defenses Many procedural questions Many evidentiary questions

APPEAL Scope of Review Law Defining element & defenses Elements of negligence per se Validity of release Many procedural questoins Req’ts for jurisdiction Req’ts for sj Many evidentiary questions Req’ts for waiver of doctor-pt privilege

APPEAL Scope 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?

APPEAL Scope of Review Fact Facts Relevant to Procedural Issues When was the summons handed to the defendant? Did defendant file answers to the interrogatories?

APPEAL Scope of Review: Fact Anderson v. Bessemer City, p. 786 FR 52(a) Clearly erroneous review Role of W credibility

APPEAL Scope 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

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

APPEAL Harmless Error Rule So you think you won? Think again!