1. 1 Agenda for 9th Class Admin –Handouts Return extras to me during class –Name plates Sanctions (continued) –Phillips –A Civil Action Summary Judgment –Celotex –Bias Introduction to JMOL and New Trial

2. 2 Next Class: JMOL & New Trial Summary Judgment in A Civil Action FRCP 50, 59 Yeazell 643-58 Questions to think about / Writing Assignment –Would the outcome of the summary judgment motion in A Civil Action be different today? –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? –In Penn, if you think the Supreme Court erred in affirming the District Court’s granting of JMOL, do you think new trial would have been appropriate? Optional. Glannon Ch. 24

3. Last Class: Experts –Non-testifying experts hired in anticipation of litigation or in order to help prepare for trial are generally shielded from discovery –26(b)(4)(D) “Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.” –Exception for “exceptional circumstances” Where other lawyer can’t now get equivalent information. 26(b)(4)(D)(ii) Chiquita holds that exception does not apply if other lawyer could have gathered the information earlier itself. But Chiquita may be wrong –Text. “exceptional circumstances under which it is impractical for the party obtain facts or opinions on the same subject matter by other means” »“is” means “now,” at the time of the discovery request –Policy. Non-testifying expert may be the only one who has access to the truth. If opposing lawyer can’t get similar information from other sources, case may not be resolved accurately. 3

4. Rule 35(b) –Can only be used to get doctor’s reports by non-testifying plaintiff’s expert in very limited circumstances –Defendant must have requested an exam under Rule 35(a) –Plaintiff must have requested a copy of the doctor’s report under Rule 35(b)(1) Then Rule 35(b)(3) requires plaintiff to turn over “like reports of all earlier or later examinations of the same condition” 4

5. 5 Last Class: Discovery Sanctions 26(g). Very similar to Rule 11, except applies to written aspects of discovery 30(c)-(d). Depositions –Lawyers can object in deposition, but can only instruct deponent not to answer “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to the court.” 30(c)(2) –30(d)(2). Sanctions on person who “impedes, delays, or frustrates” deposition –30(d)(3). May terminate or suspend deposition to make motion to judge to limit deposition 37(a) Motion to compel 37(b) Sanctions for failure to obey court order 37(c) Sanction for failure to disclose, supplement, or admit 37(d) Sanctions for failure to respond at all to discovery request

6. 6 Questions on Sanctions Yeazell p. 510 Qs 1-5 1)In Phillips v Manufacturers Hanover Trust, what rule, if any, did defendant’s counsel violate? Be sure to consider FRCP 11, 26(g), 30(c),30(d), 37(a)(4), 37(b) and 37(d) and explain why each rule was or was not violated. Note that the Rules have been amended several times since 1994, so the reasoning in the opinion may no longer be valid. 2)For each rule that you think the defendant’s lawyer violated, what is the sanction? Are sanctions mandatory or discretionary? 3)Did the magistrate judge make the right decision in Phillips v Manufacturers Hanover Trust? If you were a law clerk to Judge Francis what would you have advised him to do? 4)What, if anything, should the plaintiff’s lawyer in Phillips v Manufacturers Hanover Trust have done differently? 5)If the plaintiff’s lawyer asked the district court judge to review the magistrate judge’s decision, is the district court judge likely to affirm the magistrate judge’s decision

7. Questions on A Civil Action –Explain how Schlichtmann got information to build his case. What discovery devices did he use? What methods other than discovery did Schlichtman use to get information? –Explain what happened on pp. 162-65. Why did Cheeseman and Frederico object when Schlichtmann asked Love whether he was concerned when he found out that the wells were contaminated? Why didn’t they instruct Love not to answer? Why did Schlictmann ask these questions? –Explain what happened at “the woodshed”? What rules had Schlichtmann violated which led to the woodshed? Why does Shlichtmann say he’s “sorry Judge Skinner wasn’t a party to the agreement“? (pp. 222 & 226) What sanction(s) did the judge impose? Why was the woodshed so important? –If you were Schlichtman, how would you have handled the settlement negotiation with Facher differently? (pp. 228-31). Why do you think Schlichtman acted as he did? 7

8. 8 Summary Judgment I Burdens of proof –Burden of production. Who wins if neither side produces any evidence If plaintiff has the burden of production, then defendant wins if plaintiff presents no evidence –Burden of persuasion. Preponderance of evidence (civil), beyond reasonable doubt (criminal) If plaintiff has burden of persuasion and relevant standard is preponderance of evidence, the defendant wins if plaintiff and defendant each present evidence that is equally persuasive –In general Burden of production and persuasion go together Plaintiff usually has both burden of production and persuasion –Except defendant usually has burden of production and persuasion on defenses Burden of proof is very important for SJ –Person without proof has much easier time winning SJ –So SJ is usually defendant’s motion

9. 9 Summary Judgment II Logical Structure of law suit –Plaintiff must usually prove several things to win Negligence: Duty AND Negligence AND Proximate Cause Breach of Contract: Contract AND Breach –Defendant can usually win by proving just one thing Disproving one element of plaintiff’s cause of action –Negligence: Defendant wins if No Duty OR No negligence OR No Proximate Cause –Beach of Contract: Defendant wins if No contract OR No breach Showing that plaintiff hasn’t proven one element –Same logical structure Proving one affirmative defense –Assumption of Risk, Condition precedent, etc.

10. 10 Summary Judgment III Celotex –Party who does not have burden of production can prevail by pointing out that other party has put forward no evidence –This means that defendant need not prove its version of the facts, but rather can merely point out weakness of plaintiff’s case Makes sense, because defendant can prevail using same strategy at trial –Summary judgment is not “a disfavored procedural shortcut.” Mechanics –Each side submits memoranda discussing evidence and appendix of documents, deposition transcripts, affidavits, and other evidence –Affidavits, declarations and deposition transcripts substitute for live testimony Affidavit (sworn statement); declaration (under penalty of perjury) –To be useful, statements must be such that, if made live at trial, they would be admissible First hand knowledge, not hearsay, facts (not opinions, unless expert)

11. 11 Summary Judgment IV Legal Standard –“no genuine dispute as to any material fact and movant entitled to judgment as a matter of law.” –Undisputed facts show that moving party prevail –No reasonable juror could find for non-moving party Judge is not supposed to determine credibility –Especially of non-moving party’s witnesses –In theory, non-moving party could prevail by showing the moving party’s witnesses are not credible (just as could at trial) But that is rare. Hard to challenge credibility at SJ. Judges usually believe moving party’s witnesses, unless non-moving party can produce witness to contract them Summary judgment forces parties to do thorough discovery –Must depose witnesses etc., so have information to oppose SJ

12. 12 Summary Judgment V In general, summary judgment motion is made after discovery is complete, which is usually a few months before trial –Party can move for summary judgment anytime between filing of complaint and trial Rule 12(d) says that pre-answer motion which includes matters outside the pleading should be treated as SJ motion Nevertheless, ordinarily, SJ motion filed before completion of discovery will not be considered. See Rule 56(d)(1) –Early SJ is only appropriate when party has conclusive evidence on decisive issue Defendant in promissory note case has canceled check Deposition indicates that condition precedent not satisfied Note also that court can grant partial summary judgment –SJ on one issue, even if not decisive –Plaintiff could get partial SJ on duty and proximate cause, leaving negligence for trial

13. 13 Summary Judgment Questions I Briefly summarize Celotex Be sure to discuss what evidence each side submitted to the court? Why was plaintiff’s evidence not clearly sufficient to defeat defendant’s summary judgment motion? Why was defendant’s evidence possibly sufficient for its summary judgment to be granted? Yeazell pp. 588ff Qs 1c, 5 In Celotex, what could the plaintiff’s lawyer have done during discovery to have had a better chance of defeating defendant’s motion for summary judgment? In Celotex, what, if anything, could plaintiff’s lawyer do after the Supreme Court issued its opinion in order to win the case for plaintiff? Briefly summarize Bias. Be sure to discuss what evidence each side submitted to the court? Why did the court grant summary judgment to the defendant? Yeazell p. 596 Q4

14. 14 Summary Judgment Questions II In Bias, is it possible that the plaintiff would have prevailed at trial? How? If your answer is “yes,” why wasn’t he able to defeat the summary judgment motion? If you were the plaintiff’s lawyer in Bias, what could you have done which might have helped you defeat summary judgment?

15. 15 JMOL / New Trial Sometimes things go wrong in trial Sometimes judge or lawyers make mistake –If mistake big enough, then judge may order new trial Lawyer makes highly prejudicial argument to jury Lawyer reveals inadmissible and prejudicial evidence to jury Judge instructs jury incorrectly on major issue of law –Rare Sometimes judge thinks jury makes mistake –If judge thinks “no rational jury” could decide the way the jury decided Then judge enters judgment for side that she thinks should win JMOL (also known as j.n.o.v.) Judge not supposed to evaluate credibility of non-movant witnesses –If judge thinks that evidence is overwhelmingly against jury verdict But that jury could still rationally have decided the way it did Judge can order new trial Judge can evaluate credibility