WHERE WE ARE & WHAT WE’RE DOING Pleading Pre-trial Trial & Post-trial Appeal Waiver Finality.

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Presentation transcript:

WHERE WE ARE & WHAT WE’RE DOING Pleading Pre-trial Trial & Post-trial Appeal Waiver Finality

APPEAL Waiver Waiver “Be fair to your trial judge” Avoid unnecessary appeals Practical problems Juggling multiple issues Clinic case

APPEAL Finality The Basic Rule 28 U.S. C. § 1291 Appeal lies from “all final decisions”

APPEAL Finality The Practical Questions What’s a “final decision”? Bureaucratic requirements What’s the paperwork? How do parties know when judgment is entered?

APPEAL Finality What’s a final decision? Ends the lawsuit On merits Judgment after bench trial on verdict JML rejecting verdict Procedurally Wrong court 12(b)(1),(2),(3) - no SMJ, PJ, venue Doesn’t state claim 12(b)(6)

APPEAL Finality What’s a final decision? A Complication: FR 54(b)

APPEAL Finality What’s a final decision? A Complication: FR 54(b) More than 1 claim for relief Court may direct final judgment on < all Express determination No just reason for delay Express direction for entry of judgment

APPEAL Finality Liberty Mut. Ins. Co. v. Wetzel, p. 764 Who raised issue of appellate jurisdiction? Cf. Grant of declaratory relief Why consider alt. bases of jurisdiction?

APPEAL Finality The Policy Concerns Judicial economy “avoid piecemeal appeals versus Fairness “Correct” decisions on merits

APPEAL Timing of the Appeal When is “judgment” entered? Separate written document Waivable Notice to parties Example Verdict against state DD abuse case

APPEAL Exceptions to Final Jdgmt Rule Practical Finality (Cohen rule) 28 U.S.C. §1292(a) Injunctions 28 U.S.C. §1651 Writs Fed:Mandamus State: Prohibition Exceptions to Final Judgment Rule 28 U.S.C. §1292(b) Interlocutory Appeals

APPEAL Exceptions to Final Jdgmt Rule “Practical finality” Cohen - “collateral order doctrine” p. 775 Conclusively determine disputed question Resolve important issue separate fr. merits Effectively unreviewable On appeal from final judgment

APPEAL Exceptions to Final Jdgmt Rule Lauro Lines v. Chasser, p. 773 Def./App’s “theory of the case” Forum selection clause = “right not to be sued outside Italy” Collateral order precedents allow appeal Van Cauwenberghe v. Biard, p. 776 Immune fr. service – in U.S. because extradited Mitchell v. Forsyth, p.775 & 778, note 3 Qualified official immunity for AG

APPEAL Exceptions to Final Jdgmt Rule Lauro Lines v. Chasser, p. 773 Cf. Carnival Cruise Lines, p. 169 D.Ct. granted def’s motion for sj Enforced forum clause Why appealable?

APPEAL Exceptions to Final Jdgmt Rule 28 U.S.C. §1292(b) Interlocutory Appeals Legislative solution to Cohen rule

APPEAL Exceptions to Final Jdgmt Rule 28 U.S.C. §1651 Writ of mandamus Cf. state court practice Writ of mandamus – Asahi (CA) Writ of prohibition – WWVW (OK)