CIVIL PROCEDURE CLASS 18 Professor Fischer Columbus School of Law The Catholic University of America October 18, 2001

WRAP UP OF LAST CLASS Finished learning about discovery techniques: interrogatories, document requests, requests for physical and mental examinations, requests for admission Learned about sanctions for discovery violations, focusing on Rule 27

WHAT WILL WE DO TODAY? Finish learning about about discovery sanctions by studying 37© and 37(g) Discuss Practice Exercise No. 14

OTHER SANCTIONS POSSIBLE WITHOUT VIOLATION OF COURT ORDER Rule 37(c) When can court impose sanctions under this provision, and what types of sanctions? Rule 37(d) When can court impose sanctions under this provision, and what types of sanctions?

RULE 37(C) (1): AUTOMATIC DISCLOSURES Failure to make automatic disclosures under 26(a) Failure to supplement a prior discovery response under 26(e)(2) Punishment, is that party will not be permitted to use evidence at trial AND on motion and after opportunity for a hearing, court may impose sanctions under 37(b)(2)(A), (B), and (C) as well as payment of reasonable expenses from PARTY only

RULE 37(c)(2): FAILURE TO ADMIT After trial, party can move for reasonable expenses including attorney fee from PARTY only These must be awarded UNLESS Request objectionable Admission sought was trivial Reasonable grounds or good reason for refusing to admit

37(g): Failure to participate in discovery plan If a party fails to participate in developing a proposed discovery plan as required by 26(f), the court may, after opportunity for a hearing, require the party failing to participate to pay expenses of the other party including reasonable attorney fee caused by the failure

PRACTICE EXERCISE 14 Discovery planning in Carpenter See CB Initial disclosures Depositions – party/nonparty Interrogatories Document Requests Physical/Mental Exams Requests for Admission Sequence of discovery

TWELVE? ANGRY MEN How many jurors are on a federal civil jury? See FRCP 48.

TWELVE? ANGRY MEN How many jurors are on a federal civil jury? See FRCP 48. No fewer than 6 and no more than 12 members. Local rules are highly relevant here. In a series of decisions in the 1970s, the U.S. Supreme Court held that smaller juries do not violate constitutional requirements. Was the Supreme Court mistaken?

Controversy Over Jury Size Increased unpredictability of verdicts and awards? Reduces likelihood of representation on jury by minority groups? Makes it harder for dissenting member to argue position, because of reduced chance of having ally? Reduces collective memory and experience of group.

Standing Committee Vote In 1996, Judicial Conference’s Standing Committee on Rules of Practice and Procedure voted to amend Rule 48 to require 12 member juries Judicial Conference did not adopt the recommendation

Unanimity Does the Seventh Amendment require a unanimous verdict?

Unanimity - See Rule 48 It was held to require a unanimous verdict in American Pub. Co. v. Fisher, (1897). But there are no recent decisions on point, and the Supreme Court has held that the 14th Amendment does not require unanimity in a state criminal case but Sixth Amendment does in federal prosecution (Apodaca v. Oregon (1972)) Some suggest likely that Court would reject unanimity in civil cases if issue should arise now. Should unanimity be required for civil jury verdicts?

Values of Maintaining Unanimity? Greater participation in discussion by jurors who don’t share m? Greater juror satisfaction with final verdict? Better evaluation of evidence and law?

IMPORTANT NON- DISCRIMINATION PRINCIPLES REGARDING JURIES Jurors should represent a “fair cross-section of the community” in the district where the court sits (28 U.S.C. § 1861) (CB p. 452) No one should be excluded from jury service by reason of race, color, religion, sex, national origin, or economic status (28 U.S.C. § 1862) (CB p. 452)

A FAIR CROSS-SECTION OF THE COMMUNITY What is a fair cross-section of the community? Usually juries are selected using voter registration lists for district of court. Does a collection of registered voters represent a fair- cross section of the community, or are some groups excluded or under-represented? Does this requirement extend to individual juries, or only jury panels? Does this make sense?

EMPANELLING THE JURY: THE JURY POOL For more information about the jury pool, see 28 U.S.C. §§ Each district court must have a plan to randomly select juries to achieve objectives of 28 U.S.C. §§ Prospective jurors for jury panels selected at random from jury wheel (like lottery drawing) or something similar They are then sent juror qualification forms

QUALIFICATIONS FOR JURY SERVICE Who is qualified to sit on a jury?

WHO IS QUALIFIED TO SIT ON A JURY U.S. citizen Resident of judicial district for 1 year At least 18 Fluent in English Mentally/physically capable No pending felony charges/convictions SEE 28 U.S.C. §§ 1865(b)(1)-(5)

WHO CAN BE EXCUSED? 1. Exempted groups occupations specified in court plan- which must include public officials, active military, police and firefighters - 28 U.S.C. §1863(b)(6) 2. Volunteer safety personnel, on individual request - 28 U.S.C. §1863(b)(5)(B) 3. Individuals who can demonstrate undue hardship can be excused for discretionary period 28 U.S.C. §1866(c ) (1) 4. Individuals who are biased, disruptive, threaten jury secrecy, or adversely affect proceedings - 28 U.S.C. §1866 (c ) (2) and (5)

WHO CAN BE EXCUSED? You can also excused if you have been required to serve or attend court for prospective jury service for more than 30 days in any two year period, except when necessary to complete service in a particular case (28 U.S.C. § 1866 (e))

WHAT IF YOU FAIL TO COMPLY WITH JURY SUMMONS? You can be ordered by the Court to appear forthwith and show cause for failure to comply with summons If you fail to show good cause for noncompliance, you can be fined no more than $100 or imprisoned no more than 3 days, or both (28 U.S.C. § 1866(g))

VOIR DIRE What is voir dire?

VOIR DIRE See FRCP 47(a) Voir Dire is the process of questioning jurors for their suitability to sit on a jury Judges have discretion to determine the method of voir dire, but generally federal judges conduct voir dire

CHALLENGING PROSPECTIVE JURORS What are the two types of challenge to prospective jurors?

CHALLENGING PROSPECTIVE JURORS There are 2 types of challenge to prospective jurors: 1. CHALLENGE FOR CAUSE 2. PREEMPTORY CHALLENGES

CHALLENGES FOR CAUSE How many challenges for cause can be made? What is required to disqualify a juror for cause?

CHALLENGES FOR CAUSE Unlimited in number To disqualify for cause, the juror must evidence bias or other prejudice that would impair her ability to fairly and impartially weigh evidence/render a verdict Trial judge determines challenges for cause

PREEMPTORY CHALLENGES How many peremptory challenges are allowed?)

PREEMPTORY CHALLENGES Each side gets 3 preemptory challenges (in federal court). See 28 U.S.C. s Preemptory challenges allow attorneys to strike jurors without giving reasons Can preemptory challenges be used to exclude jurors on the grounds of RACE or GENDER?

PEREMPTORY CHALLENGES IN CRIMINAL CASES Batson v. Kentucky (1986) - government use of peremptory challenges to systematically exclude black jurors held to violate the Fourteenth Amendment rights of black defendnat Powers v. Ohio (1991) right extended to a white criminal defendant who protested exclusion of blacks from the jury by the prosecution

PEREMPTORY CHALLENGES IN CIVIL CASES: Edmonson v. Leesville Concrete Co., Inc. (1991) What are the key facts? What was the procedural issue for the Supreme Court? How does the majority rule on this issue?

Edmonson v. Leesville Concrete Co., Inc.: Majority’s Reasoning What is the state action question that the Court had to resolve? What is the standing question for the court? Whose rights are being protected by the majority?

Edmonson v. Leesville Concrete Co., Inc.: The Dissent Describe the reasoning of the dissent by Justice O’Connor, and explain how it differs from the majority’s reasoning Describe the reasoning of Justice Scalia’s separate dissent and explain how it differs from the majority’s reasoning Whose reasoning is most persuasive: that of Kennedy, O’Connor, or Scalia? Why?

Should Other Groups Be Entitled to the Batson Protection? See J.E.B. v. Alabama (1994) - to what group was the Batson protection extended? What was the Court’s reasoning in extending the protection in this way? Do you find it persuasive? Why or why not? Should Batson be extended to any other groups? If so, which?

CHALLENGING PREEMPTORY CHALLENGES Opponent of the challenge must make out a prima facie case of racial or gender discrimination Burden shifts to proponent of challenge to give a race-neutral explanation for the strike Opponent must then establish that strike was motivated by purposeful discrimination

ARE PREEMPTORY CHALLENGES FAIR? Some argue that the preemptory challenge system is inherently constitutionally flawed Are preemptory challenges necessary to ensure a fair trial? Is there anything else that should be done to ensure that juries are sufficiently racially diverse? If so, what?