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

2. 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

3. 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

4. APPEAL Scope of Review
Problem Set
Comments
Questions

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

6. 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

7. 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?

8. 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?

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

10. 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

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

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