Legal Procedures and Expert Testimony in Civil Cases, Study notes of Commercial Law

Download Legal Procedures and Expert Testimony in Civil Cases and more Study notes Commercial Law in PDF only on Docsity! Civil Procedure – Civ Pro us.docsity.com 1. Privilege and Trial Preparation Material Hickman v. Taylor (1947) p.438 • Facts o Public hearing after a tug boat accident resulted in counsel for Π, Fortenbaugh, filing interrogatories asking for all detailed conversations between counsel for respondent and survivors from the accident. § F privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation which the survivors then signed. ú This is different than just a memo of the conversation: no lawyer impressions, simply a written statement § F also interviewed other people he believed to have information – some cases he made memoranda of what he told them, others he only made mental note o Trial: § DC – not privileged § CoA – privileged (thus not discoverable) § On Appeal: Affirmed. • Issue • Holding o Rule: Where relevant and non-privileged facts remain hidden in an attorney’s file, and where production of those facts is essential to the preparation of ones case, discovery may properly be had. • Analysis o “the deposition-discovery rules are to be accorded broad and liberal treatment. no longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponents case. mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. to that end, either pay ma compel the other to disgorge whatever facts he has in his possession.” § Court: this is limited when it would undermine the adversary system o they want copies of written statements – is interrogatory correct tool? no – Rule 34 § however, may need to use a subpoena because its created by the lawyer, not client (?) o Why was this (a discovery order) appealable? Because in order sanctions, basically holding in contempt and that is immediately appealable. o what is the basis for objection? § ACP – no, only applies to communication between the attorneys and the client ú had the tugboat owners been a corporation, and the survivors still been employees, might have been protected under ACP under Upjohn Civil Procedure – Civ Pro us.docsity.com § WPD: these materials should not be produced because they are work product. ú signed written statements ú memorandum with attorneys thoughts – core work product § why? adversary system – best way to get out the most evidence and best arguments 04/02/2008 FRCP 26(b)(3): “Codification” of the WPD • covers party and representative (including other party's attorney, consultant, surety, indemnitor, insurer, or agent) • what is covered? o written statements are treated differently as they do not reflect the thoughts of counsel • But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Problems p.444 3. a. b. 4. a. you can find out whether or not he gave a video tape or transcription What about surveillance videos? • clearly work product – made in anticipation of litigation o purpose is for impeachment – loses value if the other side knows that its coming • can the WP protection be overcome? o argument that the person being surveyed was there – they should know 04/03/2008 2. Expert Information Expert: testifying to an opinion based on specialized knowledge • they are allowed to answer hypotheticals or other inferences based on this specialized knowledge • therefore, they must be qualified by the Court before being allowed to take the stand as an expert o must be a flexible inquiry on the court that reliable foundation and relevant o Court looks at 4 factors in playing gatekeeper role [see website] § has the theory or technique been tested or subject to peer review § is the error rate known § has the theory or technique gained acceptance Rule 26 Civil Procedure – Civ Pro us.docsity.com o Peralta had an employee who got injured, went to the hospital, and was supposed to pay for the employee’s injuries. o Peralta was served (outside the time limit) but chose not to show up § TC: default judgment entered ú attached the property § On Appeal: reversed – invalid (thus null) service under Texas law • Issue: • Holding • Analysis o Π claimed that would have won on the merits had he had notice, thus should not reverse o Court: “where a person has been deprived of property in a manner contrary to the most basic tenants of due process, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits. § why? usually, when the Court attaches and sells property, do not get full value § had he gone to trial and judgment were entered against him, could have come up with money another way or sold the property himself. 2. Failure to Prosecute: Involuntary Dismissal Rule 41(b) Involuntary Dismissal; Effect: If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits. 3. Voluntary Dismissal Rule 41(a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2 and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. Civil Procedure – Civ Pro us.docsity.com (2) By Court Order; Effect: Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. FL: allows once before trial, and if no motion for SJ filed, can move to dismiss anytime before jury without prejudice Rule 41 (d) Costs of a Previously Dismissed Action: If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied. 04/08/2008 B. Avoiding Adjucation C. Curtailed Adjucation: Summary Judgment State of the Evidence: (1) 10 – 30%: proper to issue DV or SJ for the other party [Judge] (2) 35 – 65%: this is a jury issue [Jury] (3) 70 – 90%: overwhelming evidence; no reasonable jury could find otherwise – proper to issue DV or SJ [Judge] Burden of Production: • suffers who will suffer directed verdict if they fail to carry (ie: if you end up in State of Evidence 1 – failed) Rule 56: Summary Judgment (a) By a Claiming Party: (b) By a Defending Party: party against whom relief is sought may move at any time, with or without supporting affidavits, for summary judgment on all or part of the claim (c) Serving the Motion; Proceedings: o motion must be served at least 10 days before the day set for the hearing o the opposing party may serve opposing affidavits before the hearing day. Celotex Corp. v. Catrett (1986) p.516 • Facts Civil Procedure – Civ Pro us.docsity.com o Catrett filed suit for breach of warranty and strict liability – alleges husband’s death resulted from his exposure to products containing asbestos manufactured or distributed by 15 named Δs o 2 Δs filed motions challenging personal jurisdiction, while the other 13 filed motions for SJ. § Celotex said Caltrett failed to provide evidence that the product was proximate cause. § Celotex then produced 3 documents which claimed a material issue of fact – was a letter from a former worker for petitioner, as well as a letter from insurance company to petitioner. o Ruling on SJ: § TC: granted SJ - claim not proven within the SOL § CoA: reversed – petitioner introduced no affidavits or otherwise to support its motion. § On Appeal: reversed and remanded • Analysis o CoA: wanted Δ to produce affirmative evidence that contradicted Πs statements o SC reverses: that standard is wrong because it fails to account for the fact that the burden of production on the Π § Rule: if Π has burden of production; Δ can win on SJ by simply pointing out the gap in Πs proof § See Rule 56(b): may move with or without supporting affidavits Houchens (man disappeared in Thailand) • Π was required to prove (a) that he died and (b) accidentally • Δ moved for SJ – Π had not put forth enough evidence to show that he had died accidentally Bias v. Advantage International, Inc. (1990) p.521 • Facts o Bias’ parents, as executor of estate, brought suit against Adidas Shoe Company, Lloyds Insurance Underwriters, and Advantage International, a sports and entertainment agents' firm. o The suit claimed that Advantage International (by and through their agent - employee) had failed in their duty to their client (Bias) to obtain a life insurance policy (also of at least $1 million in value) as the parents asserted that Bias had instructed his agent to do. o Advantage International moved for summary judgment on the ground that because of Bias’ cocaine use, would not have been able to obtain a $1 million dollar policy had they tried § DC: granted motion § On Appeal: affirmed. • Analysis o Δ: not insurable. Civil Procedure – Civ Pro us.docsity.com CHAPTER 10: TRIAL 04/10/2008 Rule 50: Motion for Judgment as a Matter of Law (a) Judgment as a Matter of Law what used to be directed verdict – takes away from the jury o to get a judgment against a matter of law against the Π - only need to show that there is an element of case where jury could not find for Π o to get a judgment as a matter of law against Δ - have to show that jury could not find in Δs favor on any of their claims o 2 Key Factors: § party must have been fully heard (b) Renewing the Motion After Trial: Equivalent to JNOV o must have made a motion under 50(a) that was denied to raise one post trial Rule 52(c): Judgment on Partial Findings (= Motion for Judgment as a Matter of Law for Bench Trials) States of the Evidence Giving Rise: • Is there no evidence from which the jury could infer a fact essential to the non- moving party’s case • Evidence is so overwhelmingly weak that the court should not permit a jury to find the fact the evidence is being offered to prove • There is no real dispute on the facts; issue is applying law to the facts and thus why should it go to the jury A. The Limits of Rational Inference Reid v. San Pedro, Los Angeles & Salt Lake Railroad (1911) p.584 • Facts o cow got onto train tracks and hit – unable to determine if (a) gate left open or (b) broken fence • Holding o Rule: if the evidence is such that there are equally plausible inference, the party who bears the burden of persuasion on that issue should lose on a motion for judgment as a matter of law § what the court is saying that the party has put forth no evidence and thus has failed their burden of production o Moving party does not need their own evidence, simply needs to point out of lack of evidence in the other party’s case (see Celotex) • Today: would not be a case of no evidence – would get an accident reconstructionist B. Procedural Control of Rational Proof 1. Juries, Democracy, and Rationality Civil Procedure – Civ Pro us.docsity.com 2. Adversarial Responsibility for Proof 3. Burdens a. Burden of Persuasion b. Burden of Production 4. Controlling Juries Before the Verdict a. Judgment as a Matter of Law (Directed Verdict) Pennsylvania Railroad v. Chamberlain (1933) p.594 • Facts o There are some train cars. Then the dead guy, then more train cars. He gets squashed between some of the cars. What is the railroad able to offer as evidence on the issue of what happened in the accident? o Employees in the group of cars that crashed into him indicated that there was no collision at all. o But there is another witness who gives some evidence of a collision. § But the Court finds that this witness does not satisfy the plaintiff’s burden of production. § In theory, under the modern Rules, the railroad could have moved for a directed verdict at that point, and it would have been valid. • Analysis: o typically, where you have conflicting testimony, as in here, the jury will resolve it § jury is usually, except in rare circumstances, allowed to evaluate and determine credibility • WHY DOES THE SC SAY THAT THIS IS NOT A CONFLICTING EVIDENCE CASE? o he did not hear the crash in a directional sense, it could have been anywhere in the yard o the witness was not an angle where he would be able to discern § when he said the cars were moving together, it would have been impossible § therefore, they say witness is testifying to something that they could not possibly know ú if simply unlikely, not enough – the court must conclude that it is impossible [Example of extremely evidence of an issue essential to that party’s case] p.599: Railroad Co. v. Stout Civil Procedure – Civ Pro us.docsity.com • children playing on railroad turntable and got injured o not fenced, not locked – no dispute about the evidence • Issue: do the undisputed facts constitute negligence? o if there is no issue of fact, why should the issue go to the jury? § to determine if it was reasonable that not fenced/locked – proper standards of care [if the legal standard is clear, the court will decide issue; if the legal standard requires application to facts, go to jury/ 04/14/2008 Class Notes from Ian 04/14/2008 Class Notes from Kirsten Judgment as a Matter of Law (Directed Verdict): during trial Judgment as a Matter of Law (Judgment Notwithstanding the Verdict): after trial • Both are asking: Is there sufficient evidence for which a reasonable jury could find for the other party on that issue? Motion for a New Trial (1): Some error during the course of the trial that the trial court recognizes some mistake/prejudicial error (procedural error) o Can be grounds for new trial, but not necessarily grounds o FRCP 61: only if it decides that the error is something significant will it go to the extreme of granting a new trial (2): when court determines that jury has returned a verdict that is against the weight of the evidence o Harder to articulate standard because the consequences are different then the procedural errors § Where the jury is confused from confusing information more deference for trial court’s grant for new trial § Where the jury is not confused and it is a common question such as whether to believe the witness, then the trial court’s decision for new trial receives more scrutiny FRCP 59: the court may on motion grant new trial on all or some issues • Does not state a standard in itself: errors in the omission of evidence or procedural errors during trial • (a)(1)(b): can grant new trial in a nonjury trial • (a)(2): have flexibility of the court correcting itself on bench trial; court can go back in its finding and change the result if that is appropriate (cannot do that with a jury verdict because they are only given one set of evidence; cannot call them back and make them consider new evidence)