Civ Pro – Outline – Wisconsin – Weston – 1
Civil Procedure Outline – Weston – Univ. of Wisconsin
American Rule- you pay your own legal fees. May be excepted by a provision in a contract
Common Fund- requires that all who benefit from a recovery share in its costs. Fee sharing instead of fee shifting.
Declaratory Judgment- Refers to a lawsuit that asks the court to tell the parties who is right and who is wrong. I.e. – Theater owner who wants to show “porno” against wishes of DA. Clear social value in having ct decide something early to avoid irreparable harm from occurring.
English rule- the loser pays the winner’s legal fees.
Fifth Amendment- Can only be invoked in a criminal context.
Magistrate- Two Functions- 1) holding pretrials 2) judicial functions that have been delegated, discovery, trying lawsuits, if both parties consent.
Specific Remedies- the remedy ordered by the ct is what the person wants that will solve the problem in and of itself, i.e. specific performance.
Substitutionary Remedies- law cannot give the person what they really want so they give them something else instead. i.e. money.
Sources of Law- 1) F.R.C.P. 2) Statutes 3) Constitution 4) Interpretation of court cases
Statute of Limitations – Two Reasons- 1) protect evidence from being brought back several years later 2) protects D’s from open ended liability or litigation.
Two Categories of response to complaint- 1) Answer- Pleading 2) Motion- request directed to the court for an order. Pleading is NOT a motion.
Qualified Immunity- have to have it because people won’t serve in public positions if they can be sued every time they make someone angry. Can’t do their jobs if they are always in ct, which also wastes a lot of taxpayer money.
Writ of Mandate/Mandamus- A proceeding against the court asking it to issue an order requiring someone to do a non-discretionary order, “do this” “do that”
Rule 7 Pleadings Allowed
7(a) 6 Types of pleading allowed in federal court:
3) Reply to a counterclaim
4) Answer to any cross claim
5) 3d party complaint
6) 3d party answer
Motion to permit or compel reply- replies to answer not required but may be permitted to compelled when
1) New matter is pleaded which may affect outcome to broadens issue
2) Info cannot be acquired through discovery
3) Case cannot proceed without reply, i.e. respond to counterclaim
4) Ct wishes to have misdesignated affirmative defense answered or clarified.
- complaint must be written and signed in accordance with rule 8 and 11
Rule 8 General Rules of Pleading
8(a)-Claims for relief- Party filing claim in complaint, counter or cross claim, or 3d party complaint must state in short and plain terms
(1) Jurisdictional grounds for claim-SMJ. (venue and service don’t have to be plead, b/c are defenses for D)
(2) Facts, circumstances, or theories that constitute claim entitling pleader to relief, (pleading standard met if it notifies adverse party of the claim and relief sought, so as to allow them to formulate a response) and
(3) Relief, remedy, or judgment sought.
- Civil rights cases are covered under Rule 8(a) and do not require heightened level of pleading – See Leatherman v. Tarrant County.
8(b)- Defenses; Form of denials- A party may make admissions or denials to allegations in an adverse party’s claim through:
Specific denial (sentence or paragraph), General denial(denies each and every averment), Qualified gen denial (deny all but certain ones) Denial on insufficient information.
8(c)-Affirmative Defenses- arbitration and award, assumption of risk, contrib negl, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, any matter constituting and avoidance or aff defense.
- Any fact asserted by the respondent that vitiates the opposing party’s claim. Confesses
- truth of allegation but denies theory of responsibility because additional facts exempt D of legal responsibility.
8(d)-Failure to deny- All averments not denied are considered admitted.
Advantages – P can state a claim w/out spending much on discovery. Case can be dismissed on the pleadings.
-Bell v. Novick Transfer Co. – D sought more info on circumstances of accident; ct held that complaint met requirements of rule 8. Complaint does not have to offer specific detail of all elements of the complaint
-Duncan v. ATT- alleged racial and disability based discrimination; P not granted similar post-accident benefits to those accruing to other employees suffering similar injuries. Details of the complaint must go to claim stated. Must apprise ct and D of P’s claim. May not state groundless/conclusory “facts”
-Rannels v. SE Nichols – broken zipper. P may meet rule 8 requirements with minimal detail in complaint, i.e. brief factual allegations.
-Zielinski v. Philadelphia Piers, Inc. – D’s answer contains ineffective denial of part of par. 5 alleging fork lift was owned, operated, controlled by D. Rule 8 requires more specific answer than general denial. D does not have right to cultivate P’s error by acts of omission.
-Layman v. SW Bell Telephone Co.- ordinary defense controverts allegation made and negates material element, Aff Defense-does not refute allegation, confesses liability, but gives grounds for excuse from liability.
Rule 9 Pleading Special Matters
9(a)-Capacity- Party must aver capacity only when capacity of a party is material to the SMJ of the claim or defense.
-Pleader should state specific reasons why a party lacks capacity to sue or be sued
9(b)- Fraud, Mistake, Condition of Mind- Fraud must be plead with particularity. Pleader must specify the manner in which each element is satisfied:
1) False representation of material fact 2) knowledge of or belief in its falsity by person making it 3) belief in its truth by the receiver 4) intent that the statement will be acted upon 5) detrimental reliance by person who was deceived.
See Denny v. Carey.
è Mistake- must be plead with particularity, what the parties intended and the mistaken result.
-Who, What, When, Where, and Why?
Rule 11 Signings of pleadings, motions, and other papers; Representations to court; Sanctions
11(a) – every pleading must be signed by at least one atty representing a party who vouches that a reasonable inquiry into fact and law has been made and that the claim is not frivolous or intended solely to harass.
11(b)- Representations to Court- establishes the standard that R 11 document must meet.
(1) Bad Faith- No improper purpose, i.e. harass or delay
(2) Advocating changes in the law- arguments justified by existing law or non-frivolous argument to change law.
(3) Foundations for factual allegations- alleged facts must have evidentiary support
(4) Foundation for denials- denials of factual allegations must be warranted by evidence.
11(c)- Sanctions- cts have discretion in deciding whether sanctions are appropriate.
11(c)(1)(A)- On Motion- motion for sanctions must be separate from other motions and specifically allege violations under 11(b).
-Due process- rt to be heard applies
-“Safe Harbor”- does not permit sanctions motions to be filed with the ct until 21 days after service. If doc in question is removed or corrected sanctions motion cannot be filed
11(c)(1)(B)-On Cts Imitative- ct can initiate sanctions process if it believes there has been a violation.
-Safe harbor does not apply, but court may give leeway.
11(c)(2)(A)- Explicitly prohibits application of monetary sanctions against a represented party for violation of R 11(b)(2). Monetary sanctions are available for atty’s and unrepresented parties.
-Bridges v. Diesel Services- ct dismissed complaint because P did not file with EEOC before filing complaint. D moves for sanctions under rule 11, which is intended as deterrent of improper conduct. As such sanctions should be reserved for exceptional circumstances where a claim is patently unmeritorious or frivolous. Where error is procedural instead of substantive, and atty makes every effort to cure, sanctions may not be appropriate.
-Business guides v. Chromatic- is about standard of conduct required to avoid sanctions: ct looks at objective reasonableness of investigation and whether P accepts error and tries to correct
Rule 12 Defenses and Objections
12(b)- All legal and factual defenses to a claim for relief must be asserted in the responsive pleading to the claim. There are 7 defenses that can be asserted in pre-answer motion.
(1) Lack of SMJ- no fed quest, no diversity, under 75,000 – See Redner v. Sanders.
(2) Lack of PJ- no contacts with state or forum
(3) Venue- right system wrong ct- localizing principle, i.e.. E.D.or W.D.
(4) Insufficient Process- summons and complaint- something technically wrong, i.e. name
(5) Insufficient Service- invalid delivery, served to minor, or incompetent
(6) Failure to State a Claim For Which Relief Can Be Granted- evidence is not legally sufficient. May only make on 12(b)(6) motion – See DF Activities Corp. v. Brown.
(7) Failure to Join Party Under Rule 19- necessary party is absent.
12(c) Judgment on the Pleadings – View in light most favorable to non-moving party.
Fatal to lawsuit- b1 and b2( Objecting to power of court), Not necessarily fatal, curable- b3, b4, b5 ( objecting to procedures P relies on), Curable- b6, b7 (challenges merits of case)
-when you file pre-answer, you don’t have to answer until the pre-answer motion is ruled on.
-may file pre-answer with answer
-When 12(b)(6) is granted P can amend following the dismissal or stand on the complaint and appeal the dismissal
12(g)-Consolidation of Defenses- if a party chooses to make a rule 12 motion, that party must include all rule 12 defenses and objections in a single omnibus motion. Exceptions are listed in 12(h)
12(h)-Preserved defenses and objections- defenses and objections to a 12(b)(6), 12(b)(7), and 12(f) Motion to strike, are preserved until the end of the trial, after the trial is over they are waived.
Rule 15 Amended and Supplemental Pleadings
15(a)- Party has absolute right amend pleading once, under either of two circumstances:
1) May amend before responsive pleading is served, i.e. answer to complaint. If it is after responsive pleading has been served, you have to get consent from other party or judge. OR
2) Within 20 days of the original pleading, if it is a pleading that does not require a response i.e. answer.
3) Otherwise must get leave of court, which shall be freely given where justice requires
4) Must plead in response to amended pleading w/in time remaining for response to original pleading or within 10 days after service of amended pleading, whichever is longer.
-Response to an amended pleading, i.e. amended complaint, must be done in time remaining before the response was due, or 10 days, whichever is longer. Ct may alter.
- When issues not in pleading are tried with express or implied consent, they are treated as if in original pleadings, the pleading can later be amended to reflect this if necessary.
- Motions to amend may be denied on any of four grounds:
- 1) bad faith, 2) undue delay, 3) unfair prejudice, 4) futility of propose amendment.
15(c)- Relation back of Amendments
(1) relation back is allowed if stat of limit in question allows it. Ensures the rule is not used to infringe on stat of limit specifically permitting relation back. ** 15(c)(1) defers to stat of limit only when statute is more generous on relation back
(2) Permits amended pleading to relate back if amended claim arose out of same transaction or occurrence of original pleading.
(3) When naming new party or changing name it must arise out of same transaction or occurrence as original pleading and be within 120 days of filing original pleading.
- party to be added or changed has to have notice, and knew or should have known who the proper defendant was, but for a mistake of name. I.e. subsidiary company named, when it is parent company that should be sued.
- Only time you get to 15(c) is when the statute of limitations has run.
- See Stoner v. Terranella.
- Beeck v. Aquaslide ‘N’ Dive Corp. – man inured on water slide, sought to recover on negligence. D filed rule 15 motion to amend because 20 day time period has passes since filing of answer. If the amendment was denied D would be forced to deny negligence using either its own plans, which did not fit actual slide or using plans of counterfeiter. Unjust.
Statute of limitations and Relation back-
-Moore v. Baker – P’s original complaint provided no notice that new claims of negligence might be asserted. Alleged acts of negligence occurred at different times, involved separate and distinct conduct. Does not relate back, propose amendment is barred by applicable statute of limitations.
- “Relates Back” -whenever claim or defense asserted in amendment arose out of conduct, transaction, or occurrence of original pleading. I.e. must give notice of new claim in original pleading. -if a claim is asserted after the statute of limitations has run, it bars P’s amendment unless it relates back.
-Bonerb v. Richard Caron Foundation- P slipped on basketball ct during mandatory exercise program. Originally complained that b-ball ct was negligently maintained. P obtained new counsel who moved to amend for counseling malpractice. A proposed amendment relates back when allegations in original and amended complaints derive from same nucleus of operative facts.
-Amendment may invoke entirely different duty and conduct, but original complaint advised D of same transaction/occurrence giving rise to the different theories of negligence.
Rule 26 General Rules Governing Discovery
The only things absolutely undiscoverable are: work product such as notes and memos that contain mental impressions or theories about the case, legal or otherwise, and things protected by attorney client privilege
Non-Testifying experts and work in anticipation of litigation: are discoverable upon a showing of substantial need or undue hardship. Cost is not an undue hardship
26(a)(1)- Must make initial disclosures @ or within 10 days after 26(f) discovery meeting, at least 4 days before scheduling conference.
(A) witness’s- names, numbers, addresses likely to have info related to disputed facts
(B) Documents- must provide copy or description by category and location of all docs, data compilations, & tangible things related to disputed facts.
(C) Damages computation-
(D) Insurance- all policies that may provide coverage.
26(a)(2)(A) – Disclosure of expert testimony- each party must automatically disclose the identity of its expert witnesses and produce an expert report for each expert witness that may testify, 90 days before trial date.
26(a)(2)(B)- expert testimony report shall contain:
- complete statement of all opinions, reasons and basis therefore
- data or info considered in formation of opinion
- qualifications of witness, including all authored publications w/in 10 yrs
- amount of compensation paid
- listing of any other cases in which witness has testified in last 4 yrs
26(a)(3)- Each party must make additional pretrial disclosures including identity of potential testifying experts, identity of witnesses to be deposed, and identity of documents or potential documents to be used and summaries of their contents
26(b)(1)- Only Relevant and Un-privileged material is discoverable.
- Any matter that bears on or that reasonably could lead to other matters that could bear on any issue that is or may be in the case.
- Party may discover any matter relevant to any claim, issue, or defense that may arise, no matter who raises it.
- Inadmissible evidence is discoverable if it may lead to discoverable evidence.
- privileged matters are protected from discovery.
- 1) party raising priv has burden of proving it,
- 2) may only be asserted by priv holder
- 3) priv waived by voluntary disclosure in discovery or elsewhere,
- 4) cannot assert priv at discovery stage and introduce priv matter at trial
- Atty/client, self incrim (when testimony could result in criminal charges only), and govt privs are the most commonly asserted
26(b)(3)- Work Product- may be w/ held as privileged during discovery then used at trial, (i.e., mental impressions, conclusions, opinions, or legal theories of an atty or representative of a party concerning the litigation are not included, only facts)
26(b)(4)- Trial Prep: Experts
(A) – parties may depose expert witnesses who may testify at trial. Discovery related w/ respect to non-testifying experts is very limited
- expert cannot be deposed until after report is disclosed to witness
(B) – to obtain discovery pertaining to non-testifying experts party must show exceptional circumstances rendering it impracticable to obtain info by other means – See Coates v. AC&S, Inc.
- Full discovery is permitted regarding an expert who is full time employee of the party, or who was retained generally, not in connection with pending or anticipated litigation.
26(c)- Protective orders
- Must show that movant has made good faith attempt to resolve issue w/o ct action
- Must be filed before discovery is to occur.
- May be made by party or witness from where discov is sought, must be brought by indiv whose interests are affected.
- ct limits discov if necessary to protect party or witness from annoyance, oppression, embarrassment, or undue expense.
- 1) party seeking P.O. has burden of showing good cause 2) P.O. motions are most common in depositions, especially when 2d deposition is scheduled
26(f)- Discovery meeting
- Parties must meet as soon as practicable, at least 14 days before scheduling conference. Initial disclosure must be made at or w/in 10 days of this meeting
- @ 26(f) meeting parties must 1) discuss nature and basis of claims and defenses, possibilities of settlement or resolution 2) arrange for initial disclosure 3) develop proposed discovery plan.
26(g) Sanctions- discovery disclosures, requests, responses, and objections must be signed certifying that it is complete, correct, and formed after reasonable inquiry.
26(g)(3)- If certification is made in violation of the rule, and is w/o subst justification, the ct shall, upon motion or own initiative, impose an appropriate sanction which may include reasonable expenses and fees incurred because of the violation.
-Blank v. Sullivan and Cromwell- information is relevant and discoverable if it appears to be reasonably likely to lead to discovery of admissible evidence. I.e. evidence of sexually oriented discrimination at partner level might be probative of similar patter in selection of associates.
-Steffan v. Cheney – whether questions relating to whether or not steffan had engaged in homosexual conduct during or after his tenure as midshipman were relevant to legality of his separation. That he seeks reinstatement as relief…does not put into issue any potentially disqualifying conduct unless such conduct was a basis for his separation.
Privilege-Seattle times v. Rhinehart – No 1st amendment right to disseminate information discovered in trial prep. Because we have broad discovery rules, invasions of confidential information will occur. The court maintains the right to restrict the use of the information. Confidentiality is distinct from privilege.
Atty/Client Priv- if did not exist people would not be candid with attys. It is societal value that we encourage people to get legal advice. People would not be honest if telling the atty was the same as telling the world.
Work Product-Hickman v. Taylor – work product is privileged, unless good cause showing of substantial need or undue hardship, i.e. unable to obtain substantial equivalent. To obtain must show that denial would cause undue hardship or injustice.
Experts- Thompson v. Haskell -P moves for protection order regarding documents in possession of Dr. Lucas, who was retained by prior counsel to perform diagnostic review and personality file, written report regarding P mental condition subsequent to employment termination. Ct denied motion. Where report may be highly probative and no comparable report exists or can be obtained, exceptional circumstances exist.
Chiquita v. Bolero Reefer - P sues for loss and damage to cargo. D moves to compel discovery of P’s non testifying expert. Was denied, nothing stopped D from having their own expert on site. P had to produce facts, but no opinions or observations of expert.
-parties shall disclose potential witnesses, 26a1, and supplement with promptness as trial date approaches, 26e.
Rule 28 Person before whom depositions may be taken.
28(a) Within the U.S.
- may be taken before persons authorized to administer oaths under fed or state law, i.e. stenographer or person appointed by ct
In Foreign countries- depends on country. Pursuant to treaty 28b1, letter rogatory 28b2, upon notice of deposition by any person authorized in U.S. 28b3, before persons commissioned by the ct 28b4.
Compelling attendance of witnesses- if witness is a party, then subject to US Cts sanction for failure to appear, maybe subject to cts subpoena power. If an alien, must rely on letter request.
28(c) Disqualification for interest- officer at a deposition may not be a relative, employee, atty or counsel of any of parties, or an employee or relative of an atty for a party, or anyone with financial interest in action.
Rule 30- Depositions upon oral examination
30(a) When depositions may be taken; when leave required
- party may take deposition of any witness or party at any time after discov meeting.
- Leave of ct is required for 2d depositions and those that exceed limit of 10, unless otherwise stipulated by opposing party.
30(b)(1)- parties desiring deposition must serve written notice on all other parties identifying deponent, time, and location of deponent. Only binding on parties properly noticed or actually represented at deposition.
30(b)(5)- Party or witness may be compelled to bring document to a deposition. Party witness must get 30 days to raise objections to production.
30(b)(6)- Cannot compel attendance at deposition of an employee who is not officer, director, or managing agent. May subpoena employee, but company is not bound by those statements
30(d) – A lawyer can only instruct a deponent not to answer the question posed under three circumstances (1) when it is necessary to preserve a privilege, (2) to enforce a limitation on evidence directed by the court, or (3) to suspend the deposition for purposed of a motion under 30d3 relating to improper harassing conduct
Rule 31 Depositions upon written questions
31(a)- Any party may take depositions by serving written questions, which are asked by stenographer and answered orally by witness. Rarely used, only advantage is that they are cheaper
Rule 33 Interrogatories to parties
33(a)- Any party may serve up to 25 interrogatories on any other party without leave of court. Subparts count as questions.
(1) each interogg must be answered fully and separately, unless objection is interposed in lieu of answer
(2) answers signed by person making them, objections signed by atty making the
(3) answers and objections should be served within 30 days after service of interog’s, unless different time is ordered by ct or agreed to by parties
(4) all grounds for objection to interrog’s must be state with specificity
(5) party submitting interog’s may move for order under 37(a) with respect to any objection or other failure to answer. i.e. motion to compel.
Advantages- answers are not limited to memory of witness because party must do investigations to answer questions
Disadvantages- answer is not spontaneous but written by a lawyer, can’t follow up, subject to abuse i.e. vague questions and answers.
Rule 34 Production of Documents and things and entry upon land for inspection and other purposes.
34(a)- Scope- Any party may serve on any other party a request to produce:
- Any relevant, non-privileged document is discoverable unless it was prepared in anticipation of litigation, pertains to expert witness, or would be unreasonable burdensome to produce.
- Includes writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations.
- Can inspect and copy, test, or sample
- request should be made with particularity with identity of item and reasonable description
- responding party must do so, in writing within 30 days of service of production request, or move for protective order under 26(c)
- Document are obtained from non-parties through rule 45 subpoena
- If party fails to respond to doc request, or objects requesting party may file motion to compel under 37(a)
Rule 35 Physical and Mental examinations
35(a)- order for examination
- can only be ordered for party or person in custody or under legal control of a party
- physical or mental condition must be “In Controversy”, and the party must show good cause. I.e. personal injury cases.
35(b)- Report of examiner-
(1) if requested by examined party, the party causing the examination must give a copy of the examiners report to the person who was examined. ** after delivery of the report the party causing the examination has a right to see the report made by the examined party’s doctor
(2) request for report under rule 35 acts as waiver of doctor/patient privilege for other examinations of same condition. If they request a report, they must give one up, if requested.
Schlagenhauf v. Holder- Bus hits tractor/trailer. Personal injury suit. Ct held that rule 35 can be applied to D’s or P’s w/o constitutional difficulty. Sometimes D’s put health at issue. May only be required of parties to the suit.
Rule 36 Requests for admission – allows each party to admit each relevant facts not in controversy, eliminating the need to produce witnesses and evidence in support of those facts. Takes issues out of play that are agreed upon and no longer points of contention.
36(a)- Requests for admission-
- one party serves requests for admission on another party, who must investigate and either admit, deny with specificity, or object to each requested admission.
- A written response is due within 30 days of service
- All parties must receive copies of requests for admissions
36(b)- Effect of admission-
- admission is deemed conclusively established unless the court permits withdrawal or amendment of admission.
- Admissions are binding only within the action in which the request was served.
Rule 37 Failure to make or cooperate in discovery: Sanctions
37(a) Motion to Compel
(A) - may move to compel discovery under 26(a), and move for appropriate sanctions, but must make a good faith effort to secure disclosure with initiating court action
(B) - if deponent fails to answer question, party fails to answer interrogatory or submit to inspection, party may move to compel answer, designation, or inspection. With deposition proponent may complete or adjourn examination before applying for order
(3) Evasive or incomplete disclosure, answer, or response is treated as failure
(A) – if motion is granted or discovery provided after motion is filed, adverse party generally pays fees and expenses incurred in making motion.
(B) - if motion is denied ct may order protective order under 26(c) and shall order moving party to pay fees and expenses incurred in defending motion
37(b) Failure to comply with order
(1) Deponent failing to be sworn in or answer a question after being directed to do so may be held in contempt
(2) Failure to obey an order to permit or provide discovery may result in order that:
(A) Deems the sought after info established
(B) Prohibits evidence
(C) Strike pleadings
(D) Dispositive ruling against disobedient party
- Failing party shall pay fees and expenses incurred as a result of failure to obey
37(c) Failure to disclose; false or misleading disclosure; refusal to admit.
(1) improper disclosure may result in sanctions awarding fees and costs, prohibiting evidence and/or sanctions under 37b2A-C, and/or informing the jury of failure to disclose.
(2) Ct shall order fees and costs unless:
(A) request was held objectionable per 36a
(B) admission sought was of no importance
(C) party failing to admit has reasonable ground to believe they might prevail on matter
(D) other good reason
37(d) Failure of party to attend own deposition or serve answers to interrogatories or respond to request for inspection
(1) Sanctions available when party fails to appear at deposition after being noticed
(2) Fails to object or answer interrog.
(3) Fails to serve a written response to request to inspect documents or things à no court order is required
- Ct may make any motions that are just, and/or take action under b2A-C.
- Ct shall require failing to act party to pay fees and expenses if failure was unjustifiable.
Phillips v. Mfg. Hanover Trust Co. – employment discrimination action. P moves for sanctions, costs, fees against D and D’s attorney for 1) allegedly abusive, unreasonable, and dilatory behavior during deposition of Sztejnberg. 2) also seeks sanctions invoked on basis of rule 37. Rule 37 Cannot be invoked because no pending motion to compel, violation of court order, or failure to appear. Rule 30 is better b/c it authorizes sanctions where conduct during deposition has frustrated fair examination of deponent. Behavior must rise to level of sanctionable, not just obnoxious or inappropriate, and ct has discretion when to exercise sanctions.
-Witnesses not properly disclosed shall be excluded from testifying, unless substantially justified, harmless, or offered solely for impeachment purposes 37c1
Rule 38 Jury Trial By Right
38(a) Right Preserved- codifies 7th Amendment. Rt to jury trial in all suit worth more than $20.
- rt to jury in action historically tried at law, i.e. damages. No rt in cts of equity, i.e. specific performance
- rt to jury is evaluated case by case basis. Public policy favors jury trial
- fed law governs whether issue is legal or equitable.
(b) Demand- any party may make a jury trial demand
(1) party wishing to have jury trial must serve a demand within 10 days after service of the last pleading raising or responding to that issue
(2) party must then file demand within a reasonable time as provided in 5(d).
- if demand is served after 10 days, ct has discretion.
- Amended or supplemental pleading does not restart the demand clock
(c) Specification of issues- party may limit a jury trial demand to specific issues, if no specification trial will be on all issues
(d) Waiver – failure to serve and file jury demand is a waiver, even if it was inadvertent
(e) Admiralty & Maritime- no rt to jury trial for these claims
-Division of Labor between Judge and Jury:
Judge rules on pretrial motions, preliminaries. Judge screens evidence and decides what is relevant and sufficient to send to jury. Judge mainly handles procedural issues which could turn on fact issues
Jury decides factual issues. Even if judge has more expertise, system set up so jury decides facts.
-see 9/16 legal vs equitable.
-Advantages of Bench (judge) Trial: more predictable; written opinion explaining reason for conclusion; can challenge interpretation or application of the law; more accountable; get to issues faster because of more experience sifting through evidence; can handle complex, technical, legal issues better; track record reveals preferences, biases; more vulnerable to appeal.
-Disadvantages- Narrow interpretations, less sympathetic
-Advantages of Jury Trial: jury is more sympathetic, cross section of community is closer to community standard, deliberate as a group and get collective decision
-Disadvantages: don’t give reasons; harder to challenge; less accountable; less experience; takes longer
Chauffeurs, Teamsters, et al v. Terry – P sues for breach of duty of fair representation. Court concludes, via historical test, that P has right to jury trial, but most significant factor was remedy sought.
Beacon Theatres v. Westover- Where case has both legal and equitable claims and common issues of fact, legal claims should be submitted to jury first.
Rule 39 Trial by jury or by the court
39(a) By Jury- once a jury trial has been demanded it will be tried that way unless:
(1) parties stipulate they don’t want one either in writing filed with ct, or orally in open court and entered on record
(2) Ct determines there is no rt to jury trial, i.e. equity claim.
39(b) By the court- equity claims or where there is no jury demand claims will be tried by court
39(c) Advisory jury- judge may impanel advisory jury.
Rule 41 Dismissal of Actions
41(a) Voluntary Dismissal
(1) By P; by stipulation- P may dismiss action w/o consent of ct by stipulation of all parties, or unilaterally if the D has not filed answer or motion for SJ
- notice of dismissal must be served on all parties
- stipulation must be signed by all parties
- dismissals by stipulation are w/o prejudice
- w/ unilateral- 1st dismissal is w/o prejudice, 2d acts as final adjudication barring 3d action
(2) By the court- except as in 41a1 dismissal must be ct order, and is not prejudiced
- ct may include terms and conditions in dismissal to prevent prejudice to D, as proposed by parties or sua sponte
- if D has filed counterclaim, action will not be dismissed against D’s objections, unless counter claim can remain pending for adjudication
- motions for voluntary dismissal is not appealable
41(b) Involuntary dismissal- 1) for failure to prosecute or comply with rule or court order
- w/in discretion of ct, but disfavored and granted sparingly
- presumed to be with prejudice unless ct specifies other wise
- if made @ end of P’s case D’s motion for invol. dismissal may be oral and w/o notice
- may be appealed as final order
41(c) Dismissal of counterclaims- applies to counter, cross, and 3d party claims with equal force.
41(d) Costs of previously dismissed actions- if P, who has already voluntarily dismissed an action, commences another action on same claim, the ct can stay the 2d action until the P pays such costs of the 1st action as the ct deems appropriate.
-Trial ct decision denying dismissal is interlocutory
-Manshack v. SW Electric Power Co.- P loses job, files suit US district ct. Critical pretrial issue is whether LA or TX law applies. Ct ruled that LA law applies. P sought voluntary dismissal to refile in TX state ct. Ct granted and Cir Ct affirmed.
Rule 45 Subpoena
45(a)(1)(C) - subpoena to command person to give testimony or produce and permit inspection and copying of documents and things.
45(b)(1) – may only be served on Non- Parties (2) within jurisdiction of court or within 100 miles of place of deposition, hearing, trial, production, or inspection specified in subpoena, or as specified by court or statute
Rule 47 Selection of Jurors
47(a) Examination of Jurors- ct and/or parties may question prospective jurors to determines bias so as to make peremptory challenges meaningful.
- Ct may conduct examination, if so parties may submit questions that judges as if they deem them important
- Challenges for cause are ruled on by ct, party making challenge has burden of persuasion. Partiality is grounds for such a challenge
- Jurors must be resident of district for one year, be literate, fluent in English, mentally and physically capable, have no pending or past convictions punishable by more than 2yrs in prison
- Certain people excluded: person providing vital svcs, police, fire; person for whom it would be hardship, single mothers, sole proprietors; persons who are partial or disruptive.
47(b) Peremptory challenges- each party has 3 peremptory challenges, and generally need not give an explanation. # may vary depending on # of P’s and D’s.
- improper to exclude juror on basis of race.
47(c) Excuse-ct may excuse juror for sickness, family emergency, juror misconduct. Refusal to join majority is not grounds for excuse.
Edmonson v. Leesville – P objects to striking of jurors on basis of race. Wants batson extended to civil cases; requires articulation of race neutral explanation for striking jurors. The concern is that it is inappropriate to extend because const protection only applies to gov’t action , not private. RULE: in civil cases, parties cannot strike for reasons of race alone. Dissent: decision prohibits minority D from trying to seat as many person as possible of his own race. Parties should control proceedings, not gov’t function.
Rule 48 Number of Jurors- Participation in Verdict
- cts may select any # of jurors from 6-12
- absent stipulation verdicts must be anonymous. Parties can stipulate that a unanimous decision is not necessary
- party may demand that jury be polled to verify unanimity
- if juror is excuse under 47c, the verdict among remaining jurors is valid, unless fewer than 6. parties may consent to verdict of less than 6
Rule 49 Special verdicts and interrogatories
49(a) Special verdicts- ct may require jury to return special verdicts as to each factual issue, instead of general verdict in favor of one party.
- ct has virtually absolute discretion, appropriate in complex cases, and when status of law is uncertain, i.e. if trial ct is reversed on law, sufficient special verdicts may render new trial unnecessary.
- Will sometimes contain mixture of law and fact, should not as purely legal questions
- Ct is required to give jury sufficient instructions so they can determine each issue in front of them
- If court omits a question of fact raised by pleadings or evidence, each party must object to omission before jury retires, or else they waive their right to jury trial on that issue
- If jury fails to unanimously agree on some answers, judge can: resubmit interrog, ask parties to accept majority response, enter judgment on unanimous answers if they are dispositive, declare mistrial, order partial retrial on issue not agreed upon.
- Objections to answers or verdict should be made before jury is discharged
49(b) General verdict accompanied by answer to interrog.- ct may submit to jury general verdict and written interrogatories about specific factual issues
- serve 2 functions:
1. focus jury on certain issues and insure verdict is consistent with factual findings
2. if court is reversed, new trial may be avoided if interrog contain sufficient findings
- if interrog answers are not consistent with general verdict, ct has three options:
1. order jury to deliberate further
2. enter judgment on interrogatories, if sufficient
3. declare mistrial
**Watch out for judge acting as a juror!!
Rule 50 Judgment as a matter of law in jury trials (directed verdict); alternative motion for new trial (JNOV); Conditional rulings.
50(a)(1) Judgment as a Matter of law (JAML) (directed Verdict)- allows ct to take a case away from the jury by entering a judgment if there is not sufficient evidence to raise genuine factual controversy
- motion must state judgment sought, and law and facts supporting judgment
- may be made at any time before submission of case to the jury, must be made or renewed at close of the record
- may be made on whole case or specific issues that are not dispositive
- sufficiency of evidence is issue of law determined by judge, must view evidence in light most favorable to non-moving party, cannot make credibility determinations or weigh the evidence
- ct must draw all reasonable inferences from the evidence that favor the opposing party. JAML will be denied if evidence is susceptible of conflicting inferences, even if all facts are undisputed.
- Ct is under no obligation to grant JAML, even if supported by the record
- JAML is prerequisite to challenging sufficiency of the evidence on appeal
50(b) Renewal of motion for judgment after trial; alternative motion for a new trial- ct can enter a judgment inconsistent with jury’s verdict, if it determines that the verdict was not supported by the evidence. ** JAML is a prerequisite for judgment after trial.
- post judgment motions must be filed (not served) w/in 10 days after entry of judgment. 10 day limit cannot be enlarged
- Judgment After Trial (JAT), must state grounds for relief and is limited to grounds raised in JAML
- Can’t make motion for JAT if there was no motion for JAML, but if evidence does support the verdict, ct can order new trial.
- New trial is favored over JAT when it appears that party could present sufficient evidence at future date.
- (1) If jury returned verdict ct may:
(A) allow the verdict to stand
(B) order a new trial
(C) direct entry of JAML
(2) If no verdict returned ct may:
(A) order new trial
(B) direct entry of JAML
- Rulings on motions for JAT are final and appealable
50(c) Same: conditional rulings on grant of motion for JAML- if ct grants a motion for JAML, and a motion for new trial was also filed, the ct will make a conditional ruling on the motion for new trial.
- (c)(1) if not motion for new trial is granted, when JNOV gets reversed the original verdict will be entered.
- ruling on motion for new trial is only applicable if the appeals ct reversed the granting of JNOV. Appeals ct will generally enter original verdict or order new trial
- if ct grants motion for JNOV and new trial, ruling on new trial is automatically deemed conditional.
- party whom JNOV was granted against may file a motion for new trial, no later than 10 days after entry of judgment.
50(d) Same: denial of motion for JAML- if the losing party appeals the denial of a motion for JAT, the prevailing party may on appeal assert grounds for a new trial in the event that the court reverses the denial of the motion for JAT. If the appellate ct does reverse, it may order the entry of judgment, order a new trial, or remand to the trial ct to determine whether new trial is warranted.
RULES: 1.Testimony may be Not Credible as a matter of law, i.e. was not in position to observe event; 2. Cannot draw inference from inference 3. Ct may draw inference from failure to produce evidence 4. Direct testimony may be overcome by physical facts. 5. One has to evaluate relative strength of evidence w/o making judgment as to its credibility, a very fine line.
Rule 51 Instructions to the Jury- Before jury retires to deliberate, the judge must instruct the jury as to the law they are to apply. The parties have an opportunity to request that certain instructions be given, and to object to instructions given and not given.
- Requests for JI’s (Jury Instructions) normally made at close of evidence. Usually written, may be oral.
- Ct should give JI on every material issue in the case; it should clearly and understandably convey status of applicable law
- party must object to the content of the instructions before the jury retires to deliberate, in order to preserve that issue for appeal.
Rule 55 Default
55(a) Entry of Default- upon motion, clerk of ct may enter default against a party who has failed to plead or otherwise defend.
** entry of default is prerequisite for entry of Default Judgment (DJ).
** Defaulting party is deemed to have admitted all well plead allegations of the complaint
55(b) Judgment- DJ may be entered as follows:
(1) By the clerk when 3 prerequisites are met
a. D defaulted for failure to appear, and
b. D not an incompetent or infant, and
c. amount due is either sum certain, or sum that can be made certain by computation
- Not met where portion of damages is yet to be determined, i.e. atty fees
(2) By the court-
a. where D has appeared, ct must serve D with written notice of application for DJ at least 3 days before hearing on application
b. where D is incompetent or infant, may be entered only if infant or incompetent is represented
c. where amount due is uncertain, ct may conduct hearing, bench trial, or jury trial to assess damages
d. where D has been defaulted for a reason other than failure to appear, i.e. failure to plead or otherwise defend.
- entry of DJ prevents D from contesting factual allegations, but not challenging amount of damages
- D appears when D makes some presentation or submission to the ct
- Entry of DJ is final order and subject to immediate appeal
55(c) -Setting aside default- for good cause shown entry of Default may be set aside. If DJ has been entered, it may be set aside in accordance with 60b.
55(d) – 3d party P’s , counter and cross claimants may also invoke default provisions, same standards apply as would for a P
55(e) – default against U.S.- DJ may not be entered against US, fed agency, or officer unless P establishes with satisfactory evidence, a claim or right to relief
- default may be entered, just not DJ.
Possible reasons for failure to respond: lack of or improper service, trivial in light of cost of litigation. Ct probably won’t enter default if it is technical and D is not present, done out of prejudice, involves large sums of money. If no DJ, then trial on merits.
Advantages- D can save money and time by failing to respond. Basically admits claim then argues amount of damages. Very disfavored by the ct.
Peralta v. Heights Medical Center - appellee sued Peralta for $5600. Appellant did not appear or answer, DJ was entered for amount plus fees and costs. DJ was reversed because of defective service. Got service but it was untimely, which is same as no service, so did not have to appear or answer.
Rule 56 Summary Judgment
56(a)- For claimant- claimant seeking to recover on a claim, cross or counter claim, or declaratory judgment can move for Summary Judgment (SJ) at any time 20 days after commencement of the action or after service of opposing party’s SJ. Can be w/ or w/o affidavits
56(b)- For defending party- a party against whom a claim, counter or cross claim or declaratory judgment is sought, may move for SJ at any time w/ or w/o supporting affidavits
56(c)- Motion and proceeding thereon- motion must be served at least 10 days before the time fixing for the hearing.
- SJ will be rendered if all the information shows that there is not genuine issue as to any material fact, and moving party is entitled to JAML.
- Forces opponent to come forward with at least one sworn averment of fact essential to their opponent’s claims or defenses.
56(d) – Partial summary adjudication- Dist ct is permitted to declare certain facts as established for the case, (i.e. facts w/o substantial controversy)
- Narrows triable issues and eliminates matters involving no genuine issue of material fact
- May enter judgment on liability issue where damages must await trial
- Generally inlocutory.
56(e) – Use of affidavits in SJ practice- affidavits to support or oppose SJ must be based on personal knowledge, set forth admissible facts, establish affiants competence to testify
- Personal knowledge- 1st hand observations or personal experience, not info or beliefs
- Admissible Facts- hearsay, conclusory averments, self-serving declarations are generally improper.
- Competence- must demonstrate that affiant is competent to testify to facts contained in affidavit
56(f) – When affidavits unavailable- If non-moving party cannot obtain factual affidavit, they may file one to that effect with the court. Ct may grant temporary reprieve from SJ
- often used to delay SJ until more discovery can be had, that party contends, that will preclude entry of SJ.
- Ct may grant SJ, grant continuance, permit discovery, make any just order
56(g) – Affidavits made in bad faith- if ct concludes that affidavit was made in bad faith ct will order offending party to pay fees and expenses, and may hold them in contempt.
Advantages- Saves time, expense, and judicial resources of trial but is drastic because it denies non-moving party opportunity for trial.
Celotex Case- A. moving party must show that there is an absence of evidence to support non-moving party’s case. B. Movant has burden of persuading fact finder that there is no genuine issue of material fact. Movant must do work of looking at and citing relevant evidence and why it should be disregarded. Non-movant does not have to prove case. C. standard in civil case is POTE or greater “clear and convincing” evidence . Court doesn’t evaluate evidence except that in deciding sufficiency of evidence may look at the quality
Houchens v. American Home Assurance – P brought suit for B of K when D refused to pay on life ins policy of husband, which stipulated death had to be accident. Husband merely disappeared while in Thailand and after 7 years was declared dead under VA law. Jury cannot make inferences upon inferences, he could be living in Thailand or he could be dead. SJ granted because inferences must be derived from evidence and there is no evidence, jury cannot speculate what happened.
Rule 59 New Trial
59(a) New trial may granted when:
- verdict is against great weight of the evidence, in order to prevent a miscarriage of justice
- Flawed Process(T Ct Error)
- Flawed Verdict (
- Internally Inconsistent, gen verdict with special interrogatories
- excessive-remittitur or new trial available
- Inadequate- only new trial available, not addittur
- Error in admission of evidence ( Prejudice)
- R51 Flawed Instructions
- Jury Misconduct
- Improper comments by judge
- Misconduct by counsel
- Newly discovered evidence that 1)existed at time of trial, 2) was excusably overlooked despite attempts to discover, 3) must be admissible, 4) must be likely to alter the trials outcome.
- Have 10 days after entry of judgment to file and serve motions for a new trial
- May move for a new trial before formal entry of judgment at any time during the 10 days following the entry of judgment
- 10 day period is jurisdictional and may not be waived or extended
Rule 65 Injunctions and Preliminary Relief
1) Ex Parte TRO- one person files paper and an order is directed without notice to the other party
2) TRO-Sworn affidavits are filed by both sides and a decision is made upon those.
3) Preliminary Injunction-Judge has a hearing to listen to both sides and then makes a decision.
Test: 1) have to convince court of irreparable injury. 2) Balancing of harms, the harm caused by the relief cannot be greater than the benefit it provides the P 3)Granting the injunction is in the public interest. 4)P will probably prevail on the merits
Inglis- Irreparable does not really mean irreparable, means very difficult.
Rule 68 Offer of Judgment
If the P rejects an offer and the recovers less than the offered amount:
1) P may not collect his own costs, and
2) P must pay the D’s costs that were incurred after the offer was made.
-”Costs” ordinarily do not include Atty fees.
- Goal is to encourage settlement
- If the P loses Rule 68 does not apply
Marek v. Chesney - Must pay attention to statute. Fees as costs Rule 68 applies. Fees and costs, Rule 68 only covers costs.
Advantages: strong incentive to settle and avoid litigation, keeps damage awards in line since P must balance damages with offered settlement and risk of having to pay costs, punish for not taking fair settlements, forces P and atty to stop and think before continuing.
Disadvantages: can create ethical problems balancing merits of case with fees.
Ground Rules for appeals
1. P can on appeal on losing legal theories which grant alternative relief
2. Issue must be raised at trial level, if not it is waived. SMJ can NEVER be waived
3. Must be filed within 30 days of judgment , may be suspended during motion hearings.
Final Judgment Rule:
1. 28 USC 1291 : appeal can only be taken from a final decision which, under Catlin v. US is one which ends the litigation on the merits and leaves nothing for the court to do by execute the judgment.
a. Denied motion to dismiss is interlocutory. R 50, 56.
b. advantages: saves time and resources, avoid delay that interferes with ultimate resolution, decreases work of appellate court by not generally allowing interlocutory appeals
2. Exception: Declaratory judgment; 1292a, interlocutory motion for injunction; Writ of Mandamus, interlocutory appeal on abuse of discretion????
3. Exception: Collateral Final Order Rule- Involves ruling that is important but does not go to merits of the case, far from the underlying cause of action, will never be heard on appeal .
- Works under absolute immunity if meet elements:
- a. Conclusively determines question in dispute
- b. Resolves important issue completely separate from merits of action
- c. Effectively unreviewable on appeal from final judgment
4. Advantages to Final Judgment Rule:
A. Otherwise, would have delay interfering with ultimate ruling. Case would be suspended while continuous appeals were being decided.
A. May have to retry case. (time, expense, judicial resources.)
B. Parties expend resources that would be saved if the ruling was dispositive
Scope of Appellate Review
Questions to address for appellate review
1. Timing: is appeal premature, does it satisfy final judgment rule or exceptions?
2. Scope of Review: What can app ct consider on appeal, what must they defer to T Ct
3. Harmless error rule- limits availability of reversal
a. show mistake exists
b. show mistake caused harm, requires assessment of how outcome would have differed but for error.
- Constraints are placed on appeals; designed to save resources and time, and promote final resolution of the case
4. Advantages to making appeal available:
a. provides for correct result, check on the lower court
b. Ensures final decision is on cts can stand behind, promotes confidence in system and judgment
c. Clarifies legal precedent ensuring the law was interpreted and applied correctly.
d. allows for potentially more reasoned analysis, provides guidance to lower cts
e. For parties it conveys greater sense of ownership, justice, fairness, comfort, assurance
f. preserves appearance of justice
-If you have two legal theories and you win on one theory and lose on another, you cannot appeal if both theories were in pursuit of one award, ie other theory had better precedential value.
-If you don’t get all that you asked for you can appeal, but the other party can cross appeal and you could lose a lot.
Standards of Review
1. De Novo – no deference to T ct. may completely substitute app cts view. Often used for legal findings because app ct has broader view. Legal questions pertain to other cases, while questions of fact are case specific. App cts are better suited to review law
2. Clearly Erroneous- Used for factual findings by the judge. If T Cts determination of evidence is plausible in light of record, app ct is not entitled to reverse;
- must defer to T cts factual findings because T ct observes witnesses firsthand, and can make judgments about credibility, demeanor
- conserves judicial resources. No greater accuracy achieved by allowing app ct to decide on factual matters
- don’t want to upset balance and division of work between T ct and app ct
- Can’t just disagree, must be clearly erroneous
- Less intrusive than De Novo
- Not who can do job better, but who’s job it is to do.
3. Abuse of Discretion-
a. Used for discretionary rulings
b. Very deferential to T Ct
c. Very case specific
- ie punishments under rule 11, motion to amend complaint, choosing sanctions under R37, anywhere court has discretion. Used where abuse is really outrageous.
4. Substantial evidence/ reasonableness- Used for jury findings of fact.
To gain appeal: characterize issue as legal in nature
To maintain ruling: characterize issue as one of fact.
Recusal – 28 U.S.C. 455
(a) Any judge shall disqualify himself in any proceeding in which his impartiality might reasonably question
(b) also should disqualify himself when he knows that he individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy, or in a party to the proceeding
(c) Judge should make reasonable effort to inform himself of these interests.
Liljeberg v. Health Acquisitions Corp
- Our legal system comes from rich complex history.
- Merger of law and equity,
- precedent and slow change,
- policy better made by cts or legislature.
- Modern changes in the system from generalities to notice pleading,
- discovery has been reformed, recent dissatisfaction with liberal reading of pleading and discovery,
- expense in litigation,
- party autonomy,
- fairness concerns-notice hearing,
- provisional remedies,
- concerns about protecting defendants,
- difference between facts questions and legal questions-mistake to law will affect others,
- concerns about finality-res judicata,
- collateral estoppel,
- litigation is a weapon.
- Replevin to recover personal property
- Ejectment to recover land
- Writ of mandamus-ordering a lower court to perform and act required by law
- Habeas Corpus-
- Specific performance
- Declaration of constructive trust
- Recession of contract
- Quiet title
- Remove clouds from title
Mechanics of Making a Motion
Motion consists of 4 different documents.
1. Motion- request for specific relief sought
2. Notice of motion- tells opposing party when the motion will be heard
3. Affidavit setting forth any factual information necessary for granting the motion
4. memorandum of law explaining, with reference to supporting authorities, the legal basis for the motion. Motion must be filed with clerk of court
Resolutions Without Trial
1. Dismissal for Legal Insufficiency: Dismiss on the pleadings 12(b)(6), 12(c)
a. lack of jurisdiction, smj or pj
b. failure to state a claim
2. Dismissal for procedural insufficiencies: Default Judgment R.55 and Dismissals R.41
a. voluntary dismissals
b. Involuntary dismissals
3. Dismissal for factual insufficiencies: Summary Judgment R. 56, JAML R .50
5. Alternatives to litigation
c. Summary Jury
6. Managerial Judging
Contracting for a judgment: settlement in post trial phase to avoid appeal. Can judgment be reversed by parties to preserve reputation, avoid precedent, etc?
Yes. Neary v. UC-Davis: judgments belong to parties and can be reversed at their request barring extraordinary circumstances
1. Promotes settlement
2. Accommodates party’s interests
3. Promotes fundamental purpose of public judiciary which is to provide a forum for the resolution of private disputes
4. About settling disputes, not establishing policy.
No. Bancorp v. Bonner Mall: Judgments are public property
1. Judgments are public and need good reason for vacatur
2. Removes incentives to settle early
3. Judgments are presumptively correct and should not be altered at will
4. Dispute about clarifying law
Alternatives to Litigation
1. Negotiation: option to collaborate or cooperate. Controlled by two parties
2. Mediation: 3d person helps two parties reach agreement. Parties maintain control. One role of mediator is to bless agreement between the parties, have parties come to an agreement.
3. Arbitration: Like trial but private, pick arbitrator (expert/objective person)
4. Mini-Trial: CEO’s hear their case being presented to get more refined view of what case is about
5. Summary Jury Trial: lawyers present summary of case and judge/jury decides in advisory capacity
6. Early Neutral Evaluation: appoint someone to meet with client’s after pleadings but before discovery to render an opinion on strength and strategies of case. Usually ends up in mediation
7. Trial: Surrender control of process to someone else, in public setting.
1. Try Negotiation (usually too late)
2. Assign mediator
3. Mediator options can be anywhere from reference only to directed, evaluative mediation. Goal is to bring parties together toward a common goal, must remain neutral
4. Skills of Mediator: impartiality, listening, find commonalities, narrow disputes, creative solutions
What happens in mediation
1. Mediator established rules, explains role, what mediation is, confidentiality policies, and asks for opening statements
2. Let interaction happen until sides will no longer reason
3. Caucus: separate parties and ask what real objectives are, underlying motives, etc.
4. Lawyers: if aim too high, freezes process, but don’t focus on bottom line, allow for creativity, don’t show frustrations, look for real reasons behind claims and objections.