Presentation is loading. Please wait.

Presentation is loading. Please wait.

Agenda for 12th Class Admin Name plates Handouts Slides Polinsky

Similar presentations


Presentation on theme: "Agenda for 12th Class Admin Name plates Handouts Slides Polinsky"— Presentation transcript:

1 Agenda for 12th Class Admin Name plates Handouts Slides Polinsky
Appeals German procedure Introduction to Settlement & ADR

2 Assignment for Next Class
Settlement and ADR Yeazell pp , , You do not need to read these materials carefully Handout (Polinsky) If you are not quantitatively inclined, you will need to read this carefully. Polinsky is extremely clear, but it will take time. Blackboard Questions on Settlement Questions on last page of Polinsky handout, except Qs 1, 3 & 5 (which are the Blackboard questions) WG1. Q2 WG2. Q4 WG3. Q6 WG4. Q7 WG5. Q8 WG6. Q9 WG7. Q10 Double points if turned in by Sunday noon

3 Appeal: Who 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 Often both sides can appeal --- Cross appeals If won, can defend judgment on appeal with reasons rejected by trial court Need not cross appeal “Right for any reason” doctrine Judge denies 12(b)(6) motion based on invalid legal theory, but grants defendant’s SJ based on uncontradicted evidence. Plaintiff appeals. Defendant can argue that appellate court should affirm based invalid legal theory argument in 12(b)(6) motion. Plaintiff sues on contract and tort theory. Both give same damages. Court grants SJ to defendant on tort theory, but gives judgment to plaintiff on contract theory. Defendant appeals. Plaintiff can argue that appellate court should affirm based on tort theory on appeal. If in doubt, cross appeal.

4 Appeal: Finality Can only appeal final judgment
Rule is about when, not what But when judgment is final, can appeal all issues resolved in case Examples of final judgments Grant of 12(b)(6), grant of SJ, grant of JMOL, judgment in accordance with verdict Assuming these are complete rather than partial 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 Partial Summary Judgment, 12b6 on some but not all claims Sanctions are NOT final judgments Rule 11 sanctions, discovery sanctions Must wait until end of case Interlocutory appeals allowed if both District Court and Appellate Court agree. 28 USC 1292(b) Some other exceptions

5 Appeal: Waiver & Harmless Error
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? These 2 rules are very important Litigators need to consider when litigating and considering appeal Clerks to appellate court judges will use all the time

6 Appeal: Standards of Review I
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 Purely legal issues in discovery 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 Bench trial Purely factual aspects of discovery

7 Appeal: Standards of Review II
Deferential standards (continued) Abuse of discretion standard For trial court discretionary decisions Whether to sanction, if sanction not mandatory Amount/kind of sanctions Some evidentiary issues New trial

8 Appeal Questions 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. Briefly summarize Anderson and Harnden 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.” 8 8

9 Appeal Questions 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? 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 Judge grants JMOL and denies conditional new trial Judge denies JMOL but grants new trial Judge denies JMOL, denies new trial, and enters judgment for the plaintiff 9 9

10 Langbein, “German Advantage…”
1) Are you convinced that German civil procedure is better than American civil procedure? Why or why not? 2) What aspects, if any, of German civil procedure do you think are superior to American civil procedure? Could we adopt them without changing other aspects of our procedure? 3) What aspects of American procedure do you think are superior to German civil procedure? Could they adopt them without changing other aspects of their procedure? 4) Do you think that US courts would need a larger or smaller number of judges if we were to adopt German civil procedure ? 5) Do you think a bad judge has a bigger negative effect in Germany or the U.S.? 6) Europeans are generally willing to pay higher taxes to fund higher quality public services. Can that help explain why Germany and the U.S. have different systems of civil procedure?

11 Langbein, “German Advantage…”
Control of sequence Discovery Witnesses Experts Appellate review Judicial career

12 Intro to Settlement I Most cases settle
Roughly 2/3rds of filed cases settle Some cases settle even before complaint filed Roughly 5% go to trial Roughly 20% dismissed (Rule 12) or terminated by summary judgment Roughly 10% other – default judgment, plaintiff failed to prosecute, referred to arbitration, etc. Settlement is contract by which plaintiff dismisses case in return for something valuable from the defendant Usually money Can be almost anything – job, house, letter of recommendation, apology Often non-monetary terms -- Confidentiality/secrecy, return of discovery documents, payment of costs Economic analysis of settlement Settlement is attractive to parties because it enables them to save on the cost of litigation Settlements is sometimes not possible, because parties are sometimes too optimistic about trial outcomes Settlement is sometimes not reached, if the parties are too stubborn (strategic) in their negotiations

13 Intro to Settlement II Economic analysis of settlement
Settlement attractive to parties because saves on litigation costs Total litigation costs often equal net amount plaintiff recovers Suppose plaintiff wins $90,000 Usually pays one third to lawyer. So plaintiff’s lawyer gets $30,000 So plaintiff nets $60,0000 = $90,000 - $30,000 Defendant usually pays lawyers roughly same amount: $30,000 So lawyers get $60,000 ($30,000 + $30,000) and plaintiff gets $60,0000 Defendant pays $120,000 = $90,000 + $30,000 If settle early, parties can both be better off E.g. Defendant settles with plaintiff for $80,000 Of course, depends in part on how much parties have already invested in litigation

14 Intro to Settlement III
Economic analysis of settlement (cont.) Settlement possible if it makes both sides better off than trial Need to calculate outcome if case did not settle Easy if trial outcome known with certainty Plaintiff. Judgment minus lawyers fees. 90K -30K=60K Defendant. Judgment plus lawyer’s fees. 90K+30K=120K So any settlement amount between 60K and 120K would make both parties better off Of course, may fail to settle because of hard bargaining If trial outcome uncertain, need to calculate expected value Expected value = probability that plaintiff will prevail x judgment amount if plaintiff prevails Suppose 50% probability that plaintiff will get 100K Plaintiff better off with settlement greater than: (50% x 100K) – 30K = 50K – 30K = 20K Defendant better off with settlement less than: (50% x 100K) + 30K = 50K + 30K = 80K So any settlement between 20K and 80K would make both parties better off Of course, lots of simplifying assumptions….

15 Intro ADR ADR = Alternative Disputes Resolution
Mediation. Settlement negotiations with assistance from neutral person Mediator does not have power to imposed settlement Used with increasing frequency Arbitration. Adjudication by private judge Settlement is sometimes classified as ADR


Download ppt "Agenda for 12th Class Admin Name plates Handouts Slides Polinsky"

Similar presentations


Ads by Google