1. 1 Agenda for 10th Class Admin –Handouts Extras to me ASAP –Name plates –Remember to put on the bottom of all writing assignments: "I have not consulted any materials other than those assigned for this class and a dictionary.” Review of Summary Judgment JMOL New Trial Introduction to Appeals

2. 2 Assignment for Next Class Appeal –Skim FRCP 61; 28 USC 1291, 1292, 2111 –Skim Yeazell 674-703 (skip cases) –Read carefully Yeazell 703-713 Questions on next two slides German Civil Procedure –Handout. Langbein, “German Advantage in Civil Procedure” –Questions on last page of that handout Start reading the rest of A Civil Action to finish before 10/27 –Take notes on settlement and fees –Questions to be discussed on Monday 10/27 In what ways does A Civil Action confirm the validity of Polinsky’s economic model of settlement? In what ways does A Civil Action contradict Polinsky’s economic model of settlement or suggest that the real world is more complex than that model? Given the settlement, how did they calculate how much Schlichtmann and the other lawyers received?

3. 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. Briefly summarize Anderson and Harnden –In your summary of Harnden, include an answer to Yeazell p. 712 Qs 1f, 2 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.”

4. 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? 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 and denies new trial

5. 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 In general, evidence needs to be admissible at trial 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

6. 6 Review of Discovery & Sanctions in A Civil Action Lots of discovery Lots of non-discovery factual investigation Both sides broke rules and agreements for strategic purposes –Schlichtmann asked irrelevant questions to turn Al Love –Facher and Cheeseman broke gentleman’s agreement about deposition of experts –Neither side sanctioned But “Woodshed” seems to have been turning point in case Most important thing you can get (or lose) is judge’s respect Boston legal culture has changed since early 1980s

7. 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 –7 th 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.

8. 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

9. 9 JMOL Questions Briefly summarize Penn –Your summary should include an answer to Yeazell, p. 652 Q 1a Yeazell p. 652ff 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. 652) 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. 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. 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. 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. 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