1. 1 Agenda for 10th Class Admin –Handouts Slides SJ in a Civil Action –Name plates –No office hours this week Email me for appointment Review of Discovery Sanctions 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 for Group 1 –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? Optional. Glannon Ch. 24 Plan ahead for last Civil Action assignment. See next slide.

3. 3 Settlement & Fees in A Civil Action For approximately Monday, 11/9 Read to end of A Civil Action –Pay particular attention to: Settlement negotiations Division of money & fees Consider the following questions / Writing Assignment for Group X –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?

4. 4 Review of 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

5. 5 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

6. 6 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.

7. 7 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)

8. 8 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

9. 9 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

10. 10 Summary Judgment Questions I Yeazell pp. 581ff Qs 1, 2c 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

11. 11 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?

12. 12 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