1. CIVIL PROCEDURE CLASS 23 Professor Fischer Columbus School of Law The Catholic University of America October 18, 2002

2. WHAT WILL WE DO TODAY? Continue to learn about summary judgment Learn about other methods for pretrial adjudication: directed verdicts and j.n.o.v.

3. Confusion Prior to Celotex As to burden of proof As to burden of production As to burden of persuasion ON SUMMARY JUDGMENT MOTIONS

4. ANOTHER USEFUL DIAGRAM P. 411 Glannon Diagram was originally drawn by a famous professor of Evidence, Professor Wigmore, in the 1940s. What is the Burden of Production What is the Burden of Persuasion?

5. Burden of persuasion for summary judgment motion Which party has the ultimate burden of persuasion on a summary judgment motion?

6. Shifting burdens on the parties on a motion for summary judgment Ask first: which party has the burden of production at trial on essential element of challenged claim?

7. Initial Burden on the Moving Party if moving party has burden of production What is the initial burden on the moving party if that party carries the burden of production of challenged element at trial? The burden then shifts to the opposing party What must that opposing party show?

8. Initial Burden on the Moving Party: Non moving party has burden of production What is the initial burden on the moving party if the non-moving party carries the burden of production on challenged element at trial? The burden then shifts to the opposing party What must that opposing party show?

9. Answer to this question under Addickes What is the burden of a party moving for summary judgment where that party does not bear the burden of production according to the Supreme Court in Addickes? Was this an easy burden to satisfy? What evidence would have satisfied it?

10. Celotex: Distinguishing Addickes According to Rehnquist, was Addickes rightly decided? How should the language from Addickes quoted at CB p. 488 be construed, according to Rehnquist?

11. Celotex Did Celotex increase or reduce the initial burden on the moving party?

12. Celotex – a Divided Court It seems that 8 justices rejected the option that where the moving party did not bear the burden of production at trial they could make a valid case for summary judgment that was just a bare motion 7 justices also apparently rejected other extreme- that must submit affirmative evidence negating an essential element of the non-movant’s case Disagreement over application of these principles

13. Brennan’s Dissent in Celotex Why does Justice Brennan dissent in this case? Does Brennan think that Addickes and Celotex can be reconciled? Do you agree? Why or why not?

14. Celotex- opinions 4 justices: it was enough to support motion for summary judgment to note that P failed in answers to interrogatories to ID witnesses who cold testify about decedent’s exposure – vote to remand 3 justices – thought the identification elsewhere in record of such witnesses obligated Celotex to attack adequacy of witness’s evidence 1 justice voted to remand to Court of Appeal to address this point.

15. Inferences for Summary Judgment motions The court will believe the evidence of the non-moving party as true All reasonable inferences will be drawn in the non-moving party’s favor

16. Dismissals: R. 41 What’s a voluntary dismissal? When can an action be voluntarily dismissed? What’s the Two Dismissal Rule? An involuntary dismissal? When can an action be involuntarily dismissed? What’s a dismissal without prejudice? With prejudice?

17. DIRECTED VERDICTS Either party can, at the conclusion of the party’s presentation of its case, ask the court to “direct a verdict” A directed verdict effectively takes the case away from the jury A directed verdict is also known as “Judgment as a matter of law” What FRCP governs directed verdicts?

18. TIMING OF DIRECTED VERDICT MOTIONS When can a motion for a directed verdict be made under FRCP 50(a)? Can both D and P move for a directed verdict? Can a judge grant a directed verdict sua sponte?

19. STANDARD FOR A DIRECTED VERDICT Similar to summary judgment -- just at a different stage in the action “No legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue” In other words, party carrying burden of production has failed to meet this burden by coming forward with sufficient evidence in support of a claim or issue Like a summary judgment motion, can seek a directed verdict on entire claims or partial claims or issues

20. What’s a j.n.o.v.? What is the new name for a j.n.o.v.? What rule governs it? What is the standard for a j.n.o.v.? What time limits exist for a j.n.o.v.? Are there any other limits on a j.n.o.v.?