1. Agenda for 11th Class Admin Handouts Slides German Advantage
Name plates
Summary Judgment in A Civil Action
JMOL
New Trial
Introduction to Appeals

2. Assignment for Next Class
Appeal
Skim FRCP 61; 28 USC 1291, 1292, 2111
Skim Yeazell (skip cases)
Read carefully Yeazell
Questions to think about
Questions on next two slides
German Civil Procedure
Handout. Langbein, “German Advantage in Civil Procedure”
Question to think about
Questions on last page of Langbein handout
WG3. Q1
WG4. Q2
WG5. Q3
WG6. Q4
WG7. Q5
WG1. Q6 2 2

3. Assignment for Next Class: Appeal I
Go back through all the cases read so far in Civil Procedure
If the case was decided by an appellate court, what standard of review did the court use and why? If the case is not explicit about the standard of review, what standard should the court have used?
If the case was decided by a trial court, what standard of review should an appellate court use if the issue(s) resolved in the case were appealed? Note that if more than one issue is appealed, the appellate court may apply different standards of review to each issue.
WG1. Greene v Lindsey, Moore, Celotex
WG2. Haddle, Bonerb, Bias
WG3. Iqbal, Favale, Penn RR
WG4. Walker, Price
WG5. Christian v Mattel, Rengifo
WG6. Zielinski, Hickman, Thomopson
WG7. Aquaslide, Chiquita
Briefly summarize Anderson and Harnden (WG3)
How could you argue that the district court judge’s error in Harnden was not harmless? In doing so, consider why it is important that an expert report be submitted in the form of an “affidavit or sworn statement.” (WG4) 3 3

4. Assignment for Next Class: Appeal II
It is relatively easy for a district court’s decision to grant JMOL to be overturned on appeal (because the standard of review is de novo) but relatively hard for a district court’s decision to grant new trial to be overturned on appeal (because that decision is reviewed under the more deferential “abuse of discretion” standard” and may not be reviewable at all until after the second (or third or fourth) trial). Does this make sense? Why or why not? (WG5)
Assuming that the jury returned a verdict for the plaintiff and that the defendant moved for JMOL and new trial, who can appeal in each of the following 4 situations and when.
Judge grants JMOL and conditional new trial (WG6)
Judge grants JMOL and denies conditional new trial (WG7)
Judge denies JMOL but grants new trial (WG1)
Judge denies JMOL and denies new trial (WG2) 4 4

5. Review of Summary Judgment
Judge enters judgment before trial if no genuine dispute over material facts
Judge does not evaluate credibility of non-moving party’s witnesses, but can decide admissibility
Judge can consider impeachment of moving party’s witnesses
In general, evidence needs to be admissible at trial
Except deposition transcript and declarations/affidavits can substitute for live testimony
Also used to resolve difficult legal issues
What facts would plaintiff need to prove?
What law would apply?
Used to be granted rarely
Much more common after Celotex and related cases
Party without burden of proof can prevail by showing that the party with the burden of proof has not produced sufficient evidence in discovery to prevail at trial
Summary judgment “is not a disfavored procedural shortcut”
Generally helps defendants 5 5

6. Summary Judgment in A Civil Action
Would the outcome of the summary judgment motion in A Civil Action be different today? 6 6

7. Judgment as Matter of Law (JMOL)
Like SJ, usually defendant’s motion
Defendant usually moves for motion at trial, after plaintiff has finished presenting its evidence or after presentation of all evidence
This used to be called “Directed Verdict”
Judge almost always defers decision on motion until after jury delivers verdict
Otherwise, if reversed on appeal, will need to completely redo trial
Also, if jury decides for defendant, then judge doesn’t need to rule at all
Nevertheless, for constitutional reasons, defendant must make motion before jury decides
7th Amendment forbids overturning (“reexamining”) jury verdict
But permissible not to send case in first place to jury
If defendant makes motion before verdict and judge defers decision until after verdict comes in, treated as if judge had never sent case to jury. 7 7

8. Judgment as Matter of Law (JMOL)
Defendant renews motion after jury verdict comes in
Used to be called jnov (judgment non obstante veredicto / judgment not withstanding the verdict)
Judge grants motion if no rational juror could decide in favor of plaintiff
Like SJ, judge is not supposed to evaluate witness credibility 8 8

9. JMOL Questions Briefly summarize Penn
Your summary should include an answer to Yeazell, p. 647 Q 1a
Yeazell p. 647ff Q1b-c,
In Penn, what is the difference between a judge making a credibility determination that Bainbridge was not a credible witness (which the judge is not allowed to do) and a judge deciding that Bainbridge’s testimony was “suspicious, insubstantial, and insufficient…simply incredible” (p. 647)
In Penn, what arguments could plaintiff’s lawyer have made to have had a better chance of defeating judgment as a matter of law?

10. New Trial Two reasons Error in trial
Improper jury instructions, improper exclusion of evidence, improper argument by counsel etc.
Error must not be “harmless”
Verdict contrary to the great weight of the evidence
Judge can evaluate credibility of witnesses
Make sense that easier than JMOL?
New trial appropriate in Penn?
Conditional new trial
Party can ask for new trial at same time as ask for JMOL
Of course, party prefers JMOL, but new trial is good back up
If judge grants JMOL, might think that should not rule on new trial
But Rule 50(c) says that judge must “conditionally rule” on new trial, even if grants JMOL
That is, judge must say, if JMOL is reversed, then I would (or would not) grant new trial
Almost always appropriate to grant conditional new trial, if JMOL granted
Gives party a chance to challenge new trial on appeal at the same time it challenges JMOL

11. Intro to Appeal I 4 questions: who, when, what, how Who can appeal
Side who lost below
Can only appeal to change judgment, i.e. relief or lack thereof
More or less damages, different injunction
Cannot appeal just to change reasoning
When can appeal
Can only appeal final judgment
But when judgment is final, can appeal all issues
Examples of final judgments
Ordinary judgment, Grant of 12(b)(6), grant of SJ, grant of JMOL,
Examples of non-final judgments
Denial of 12(b)(6), denial of sanctions, discovery rulings, denial of SJ, grant of new trial, denial of JMOL,
Interlocutory appeals allowed if both District Court and Appellate Court agree. 28 USC 1292(b)
Some other exceptions

12. Intro to Appeals II What can appeal?
Issues which are neither waived nor harmless
Waiver
Can only raise issue on appeal if raised issue properly in trial court
Cannot challenge legal theory, if did not challenge in answer or 12(b)(6) motion
Cannot challenge sufficiency of evidence, if did not make JMOL motion
Cannot challenge particular evidence if did not object at trial (or before)
Harmless Error
Court of appeals only overturns judgment if error is not harmless
Court has to decide whether outcome at trial is likely to have been different if error was not made
Did error make real difference at trial?
How does court of appeals review district court decisions?
Standards of review (next slide)

13. Intro to Appeal IIl: Standards of Review
De novo (non deferential
Court of appeals examines issue afresh and reverses if it disagrees with the trial court, even if it thinks that issue was close call and trial court decision had strong arguments to support it
For legal issues
12(b)(6), SJ, JMOL
Deferential standards
Court of appeals only reverses if it thinks that the trial court made a serious error
Clearly erroneous standard
For trial court determinations of fact, e.g. bench trial
Abuse of discretion standard
For trial court discretionary decisions
Whether to sanction, if sanction not mandatory
Amount/kind of sanctions
Most evidentiary issues
New trial