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58 Cards in this Set
- Front
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Personal Jurisdiction: 4 ways to get under the Constitution and Two step process
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Consent (implied or express), domicile, physical presence, minimum contacts
2 part test - analyze under constitution and WA long arm statute |
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Personal Jurisdiction: Constitutional PJ - Consent
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1. Consent – two types
a. Implied Consent – failure to raise lack of PJ as defense b. Express Consent – Forum selection clause in K, express appointment of agent for service of process (for corps. Express appt. of agent alone insufficient for consent to PJ |
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Personal Jurisdiction: Constitutional PJ - Domicile
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PJ over all persons domiciled (residence in WA with intent to stay in WA. Change of domicile requires change of residence and intent to stay in new place)
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Personal Jurisdiction: Constitutional PJ - Physical Presence
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3. Physical Presence (aka. Transitory or tag J) – PJ based on service of process while D is in WA. Generally this is sufficient to confer PJ except if presence is by force or fraud
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Personal Jurisdiction: Constitutional PJ - Minimum Contacts
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used for absent nonresidents and foreign corporations
a. Requires D have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice b. D’s contacts must be sufficient in number and quality to show that through contacts. . . a. Purposeful availment – of benefits, protection, and privileges of WA law b. Foreseeability – should reasonably foresee being haled into court here c. Fairness (reasonableness) – “must not offend traditional notions of fair play and substantial justice” balancing test i. Burden on D of litigating in WA ii. P’s interest in litigating in WA iii. WA’s interest in litigation iv. Interests of other states in litigation c. Two categories under minimum contacts test a. General Jurisdiction – Cause of action unrelated to D’s contact with forum state requires systematic and continuous contacts b. Specific Jurisdiction – cause of action arises from D’s contacts with the forum state, fewer contacts needed (even 1 contact may suffice). Foreign corps that place product into stream of commerce |
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Personal Jurisdiction:WA statutory authorization
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1. Persons or property within WA – don’t need to worry about statutory authority
2. WA Long Arm Statute – for persons outside of WA – operates as a limit on PJ over foreign corps and nonresidential D’s served with process outside of WA. PJ will be found over D’s who do any of the following, provided that the cause of action arises from these acts a. Transaction of any business in WA (business transaction) b. Commission of a tortuous act in WA (tort) c. Ownership, use, or possession of property in WA (property) d. Contracting to insure a person or prop in WA (insure) e. Intercourse in WA that produces a child (intercourse) f. Living in a marital relationship in WA (marital relationship) |
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Notice: Remember must meet constitutional and WA requirements - what is const. req.
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A. Notice: 14th Amendment Due Process – Requires that D receive “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action
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Notice: Service of process within WA
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must serve summons and copy of complaint (both signed). Must be served by a non-party who is 18 or over or a sheriff or deputy sheriff. Types of service
1. Personal service (individuals, corporations) i. in hand to D OR ii. D’s house of usual abode (must leave it with someone of suitable age and discretion that resides there) iii. D’s usual mailing address (only when D cannot with reasonable diligence be served through one of the above methods). 1. Must leave copy at usual mailing address (other than PO or employers address) with person of suitable age and discretion who is a resident, proprietor or agent of that place AND send a copy by first class mail to D’s usual mailing address 2. For WA corp – must serve in hand to president, registered agent, secretary of corp, treasurer (cashier), managing agent, or office assistant of any of those people. If no registered agent then may serve Sec. of state. 3. Foreign corp doing business in WA – in-hand service to agent, cashier, or secretary of corporation 2. Publication – very limitied i. Affidavit – prereq. To using aff. – must state D can’t be located with reasonable diligence and personally served ii. P’s aff. Must allege one of the following 1. D is a WA resident who left state or is hiding 2. D is a nonres. Foreign corp with prop in WA 3. D is a WA corp. and proper persons to serve can’t be found 4. action involves real or personal prop in WA 5. LAST THREE USUALLY DON’T APPLY ANYMORE BECAUSE LONG ARM STATUTE MANDATES PERSONAL SERVICE FIRST iii. Notice must be published once per week for 6 consecutive weeks in newspaper of general circulation in the county where the lawsuit is brought and mail copy to D’s last known address 3. Mail – must be authorized by the court. Same req. and affidavit for service by publication, plus, allegation that service by mail is just as likely to give actual notice as service by publication. Two copies must be served to last known address, one by registed mail, the other by first class |
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Notice: Service Outside WA
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1. WA long arm statute – Personal service of process outside WA on D’s who committed one of the enumerated acts. It does not permit service by publication or mail. P must file affidavit why service can’t be made. D personally served outside of WA and prevails may be awarded attorney’s fees for extra burden of litigating in WA
2. Nonresident Motorist – Service of process (2 copies) on WA secretay of state, plus copy by registered mail to D’s last known address or personal service outside of WA, along with affidavit of inability to personally serve through exercise of due diligence in WA |
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Challenges to PJ or service of process
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1. Direct attack – most common
1. Defense of lack of PJ, insufficiency of process (not getting both docs, or both docs not signed), or insufficiency of service (not following rules and procedures). The defense is waived if not raised in preanswer motion or answer, whichever occurs first 2. Collateral Attack – if D defaults, then challenges PJ or service of process when P tries to collect |
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Subject Matter Jurisdiction: For District Ct, Superior Ct, Ct. of Appeals, Supreme Ct. and Challenges to SMJ.
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A. District Courts – Limited trial J – Amount in controversy cannot exceed 75k. CANNOT hear title to real property cases, foreclosure cases, actions for false imprisonment, libel, or slander
B. Superior Courts – Court of General Trial J a. Amount in controversy over $300 b. Exceptions to amount in controversy requirement for equity or title of prop c. Appellate J over district court and state admin agency decisions C. Court of Appeals – Appellate SMJ over all sup. Ct. decisions D. Supreme Court – discretionary appellate J over decisions by ct. of appeals. Reach down power to hear cases directly from sup. Ct. E. Challenges to SMJ – Can be raised at any time, even on appeal, and by any party |
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Venue: Local and Transitory actions
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A. Local actions – Actions involving title or possession of real or personal property. Must be brought in county where property is located
B. Transitory actions – all other actions a. Residential defendants – Any County where one of the D’s resides, or where all or part of the claim arose (only for personal injury or damages to personal property) b. Non-residential Ds – P can choose any one of these options where no D is in WA i. County where P resides, OR ii. County where D served, OR iii. County in which D committed the act satisfying the long arm statute iv. County where all or party of the claim arose (only for personal injury or damage to personal property) c. Corporate Ds - remember WART i. Work – county where work was performed for the corp ii. Agreement – county where agreement was entered in to iii. Reside – county where the corp resides (conducts business, has an office, or where persons reside on whom process can be served iv. Tort – county where tort was committed |
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Venue: Change of Venue
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can only change venue across counties in WA
a. Grounds i. Original venue improper ii. Impartial trial unavailable in original county iii. Convenience of witnesses or ends of justice would be served iv. Judge disqualified v. Stipulation of the parties b. Challenge to venue – waived if not raised in preanswer motion or in answer, whichever is first |
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Venue: Forum Non Conveniens
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A WA ct. with PJ, SMJ, and proper venue may still dismiss if another state or country is a substantially more convenient or appropriate forum
a. Prerequisites for dismissal – Alternate forum must have SMJ, D must waive any defenses relating to PJ or SOL b. Balancing Test – WA must be a substantially less convenient or appropriate forum than other state or country i. Availability of witnesses ii. Convenience of witnesses iii. Interests of the local community in the case iv. Burden on D of litigating in WA |
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Pretrial Proceedings: Pleadings - are they proper
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a. Complaint – must state parties, claim, prayer for relief
i. must state the parties in interest (a representative can sue on behalf of minor or incompetent). ii. Must have statement of the claim – 1. Notice pleading - short and plain statement showing the pleader is entitled to relief. 2. Particularity - If fraud alleged then facts and details of fraud must be in statement. If special damages alleged they must be pleaded or they are waived iii. Prayer for relief – demand for relief pleader think is appropriate – can seek multiple forms, or in the alternative. For PI case, cannot state amount of damages sought |
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Pretrial Proceedings: Types of pleadings - Complaint
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must state parties, claim, prayer for relief
i. must state the parties in interest (a representative can sue on behalf of minor or incompetent). ii. Must have statement of the claim – 1. Notice pleading - short and plain statement showing the pleader is entitled to relief. 2. Particularity - If fraud alleged then facts and details of fraud must be in statement. If special damages alleged they must be pleaded or they are waived iii. Prayer for relief – demand for relief pleader think is appropriate – can seek multiple forms, or in the alternative. For PI case, cannot state amount of damages sought |
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Pretrial Proceedings: Types of Pleadings - Answer
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Response to the complaint
i. Timing – 20 days where D has been personally served in WA, 60 days where personally served outside of WA, or service effective by publication or out of state motorist statute. 90 days for mail. If D makes pre-answer motion to dismiss and it is denied he has 10 days to file an answer ii. Contents – response to allegations, affirmative defenses, 12b defenses, claims 1. Response to allegations in complaint – can either admit or deny, if lack of info treated as denial, lack of response treated as admission 2. Affirmative defenses – SOL has run, comparative fault, res judicata, estoppel – Must be raised in answer or they are waived 3. CR 12(b) – defenses – may be raised in preanswer motion or answer a. 12(b)(1) – lack of SMJ b. (2) – lack of PJ c. (3) – improper venue d. (4) – insufficiency of process e. (5) – insufficiency of service of process f. (6) – failure to state a claim upon which relief can be granted g. (7) – Failure to join necessary parties |
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Pretrial Proceedings: Types of Pleadings - Reply to Counterclaim
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an answer to a counterclaim – called a response. Must meet same standard as answer
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Pretrial proceedings: Types of Pleadings - Rule 11
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intended to deter baseless filings
i. Applicability – applies to every pleading, written motion, or legal memo filed or served in litigation. Applies to both attorneys and pro se litigants ii. Certification – Signature certifies that to the best of the signer’s knowledge, info, and belief, formed after a reasonable inquiry, the pleading or the motion is 1. well grounded in fact, AND 2. warranted by existing law or good faith argument for change, AND 3. not being presented for an improper purpose, AND 4. denials of factual contentions are warranted on the evidence, or if specifically so identified are reasonably based on lack of info or belief. iii. Limited Scope of representation – standard Rule 11 cert, except that attorney may rely on person’s representation of the facts unless attorney has reason to believe the representations are false or materially insufficient. iv. Sanctions – judge has broad discretion as to whether to sanction and type of sanction. Ct. can sanction party and/or atty. Sanctions can be monetary or nonmonetary |
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Objections to pleadings - CR 12
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i. Substantive Objections – go to merit of case
1. 12(b)(6) failure to state a claim upon which relief can be granted 2. Motion for judgment on the pleadings – challenges the legal sufficiency of the claim after answering – court looks to both complaint and the answer in ruling on the motion 3. Motion to strike – similar to a 12(b)(6) except used by Ps to challenge the legal sufficiency of D’s defense ii. Procedural Objections – 1. CR 12(b) defenses a. lack of PJ, improper venue, insufficient process, and insufficient service of process waived if not raised in preanswer motion or answer b. Failure to state a clam, failure to join a necessary party not waived by failure to plead, can be raised anytime through trial c. Lack of SMJ can never be waived, can even be raised on appeal 2. CR 12(e) – motion for a more definite statement – Pleading so vague or ambiguous that D can’t respond |
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Pleadings: Amendments to pleadings
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i. Generally – liberal amendment policy, but amendment should not be allowed if opposing party can show prejudice can’t be remedied
ii. Timing 1. Before Trial a. As a matter of right – may amend complaint before the answer is served, or the answer (if you are D) within 20 days after the answer was served b. With leave of court – freely given when justice so requires 2. During or after trial – amendment where issue or claims were tried by express or implied consent of adverse party 3. SOL – Relation Back – When P wishes to add a claim or change a party after SOL has run. a. Amendment adding new claim against existing D after SOL has run must arise from the same transaction or occurrence of original pleading b. Changing party or name of party after SOL – must arise from same T&O of original pleading and the new D, prior to the running of SOL, must have i. Received notice of the action so won’t be prejudiced in maintenance of a defense, and ii. Know that but for a mistake, action would have been brought against them |
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Joinder of Claims: Original, Counterclaims, cross-claims, severance of claims
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a. Original claims – CR 18 – may assert as many claims as she has against D in one lawsuit, even unrelated claims
b. Counterclaims – CR 13 – claim by one party against an opposing party i. Compulsory Counterclaims – arising out of the same T&O is mandatory ii. Permissive – Doesn’t arise out of the same T&O c. Cross-claims – CR 13 – Claim by one party against a co-party. Must arise out of same T or O, it is permissive, not mandatory d. Severance of claims – CR 42 – Judge can sever any claims under these rules |
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Joinder of Parties: Permissive & compulsory
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a. Permissive joinder – CR 20 – either Ps or Ds may be joined, two part test
i. Person to be joined as Ps assert a right to relief arising out of the same T or O, or Ds have asserted against them a right to relief arising out of the same T or O AND ii. Common questions of law or fact b. Compulsory joinder—Necessary and indispensable parties. Used by existing D’s to force P to join another D or dismiss the case i. Necessary parties – must be joined if court has PJ – the test is 1. Complete relief can’t be afforded to those already parties OR 2. Person to be joined claims an interest that will be impaired or impeded if person not joined, OR 3. Existing party would be subject to multiple/inconsistent obligations ii. Indispensible parties – if no PJ, court will dismiss the case if a necessary party is determined to be indispensible. The test is whether 1. The person is a necessary party, AND 2. person can’t be joined due to lack of PJ AND 3. Existing parties or potential party will be unavoidably prejudiced if court proceeds in that person’s absence, AND 4. Alternate forums exist in which all parties could be joined |
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Joinder of Parties: Intervention
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similar to compulsory joinder, except impetus for joinder comes from person outside of lawsuit who moves to intervene and join P or D. it must be timely
i. Intervention as of Right - Test 1. Outside party claims an interest relating to the action, AND 2. Proceeding without the party would impair that interest Unless 3. Applicant’s interest is adequately represented by existing party ii. Permissive intervention – Test 1. Common question of law or fact between original action and intervenor’s claim or defense, AND 2. Court considers whether intervention will delay or prejudice the rights of original parties |
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Joinder of Parties: Impleader
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(third-party practice – CR 14)
i. Application 1. Used by Ds seeking indemnity or contribution by joining 3rd party Ds 2. Permissible 3. Grounds for impleader include indemnity, contribution, subrogation, warranty ii. Test – D must allege that 3rd party D is or may be liable to D for all or part of D’s liability to P |
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Joinder of Parties: Severance and consolidation
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– Judge has broad discretion to sever and try parties separately. Judge may join together separate actions for reasons of efficiency, convenience, and economy. In discretion of judge
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Class Action: Prerequisits
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Is the lawsuit certifiable as a class action? Suit brought by representative parties on behalf of similarly situated individuals, all of whom are bound by the decision in the case
a. Prerequisites (Commonality, Adequacy, Numerosity, Typicality – CANT) i. Commonality – questions of law or fact common to all members of class ii. Adequacy – rep parties must fairly and adequately represent interests of class iii. Numerosity – so numerous that joinder is impractical – less than 25 = no class, over 40 = class iv. Typicality – claims or defenses of class reps must be typical of claims or defenses of the rest of the class |
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Class Action: Types
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i. Separate acions would create inconsistent standards of conduct
ii. Separate actions would impair interests of nonparties iii. Injunctive relief would necessarily apply to entire class iv. Class is the best way to adjudicate claims – common interests must predominate over questions affecting only individual members. Court must balance interests 1. class members interest in individual litigation 2. extent of litigation already commenced 3. desireability of concentrating litigation in one forum 4. difficulties in managing a class action |
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Discovery: Scope
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A. Scope – Parties may obtain discovery regarding any matter not privileged which is relevant to subject matter involved. Includes evidence and info reasonably calculated to lead to discovery of admissible evidence.
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Discovery: Limits
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B. Limits
a. Work product – Documents and tangible things prepared in anticipation of litigation or trial i. Qualified privilege (not absolute) – Cannot obtain unless party can show 1. Substantial need of the materials to prepare case AND 2. Unable w/o undue hardship to get substantial equivalent by other mean ii. Attorney’s mental impressions, legal theories, etc, are absolutely privileged - undiscoverable |
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Discovery: Limits - Experts
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b. Experts
i. Expert who will testify – E’s identify and substance of testimony discoverable through interrogatories and depositions ii. Expert who will not testify – E’s identity and substance of testimony only discoverable under exceptional circumstances |
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Discovery: Limits - Protective orders
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Ct. has broad discretion to enter one if justice requires to protect party from annoyance, embarrassment, oppression, or undue burden or expense. Protection order must include a certification that parties have conferred with respect to the motion
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Discovery Devices: Depositions
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a. Depositions – CR 30 – taking of a sworn testimony from party or witness w/ atty asking questions. Recorded by stenographer or video taped. Available for use with parties and nonparties. Only need to provide 5 days notice for party deponents, stating the time, date, place, as well as party to be deposed. Non-parties must be subpoenaed – if no subpoena and they do not show up, party may be charged atty fees
i. Geographical limits for non-party deponents 1. WA resident – only in a county where person resides, is employed or contracts business in person 2. Nonresidents – may only be required to go to county where served with subpoena or within 40 miles ii. Improper practice at deposition 1. asking Q’s beyond the scope of discovery 2. Objections that suggest or coach answers 3. Instructing deponent not to answer, unless based on privilege 4. Privately conferring with deponent between q and a, except for purpose of determining privilege |
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Discovery Devices: Interrogatories
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written questions from one party to another, must be answered under oath, no set number
i. Duty to reasonably investigate ii. Business records option – may produce business records in lieu of answering requires compilation, audit, or summary of business records, but only if burden of ascertaining the info is the same for both parties iii. Objections to interrogatories – overbroad, vague, burdensome and oppressive, irrelevant, privileged iv. Time for response or objection – 30 days after service of interrogatories, except D need not respond less than 40 days after service of summons and complaint |
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Discovery Devices: Requests for admission
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CR 36 – written request for admission of truth of statements regarding facts or opinions relevant to the case. Can only use at trial. Usually binding at trial unless ct. allows withdrawal
i. Duty to investigate ii. Response options – admit, deny, lack of info (treated as denial), object, failure to respond (treated as an admission). iii. Time for response or admission – same 30/40 rule as for interrogatories and production of docs. Non-response treated as admission |
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Discovery Devices: request for production of documents and things
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written request from one party to another for the production of docs and things, entry onto land for inspection. Items must be described with reasonable particularity
i. Duty to produce docs in party’s control ii. Time for response or objection – same as interrogatories – 30/40 rule iii. Obtaining things from nonparties – must subpoena non-party to produce items |
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Discovery Devices: Mental and physical exams
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CR 35 – Ct may order physical or mental exam of a party, but it must be what is in controversy and good cause must be shown
i. Report and waiver – person ordered to undergo exam has an absolute right to the report, but by requesting they waive any privilege regarding medical reports regarding the same issue |
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Discovery Devices: Use at trial
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a. Depositions –
i. nonparty witness available for trial – may be used to impeach ii. Party available for trial – may be used by opposing party for any purpose iii. Party or witness unavailable – may be used by any party for any purpose iv. Expert – may be used by any party for any purpose if an out of state expert or healthcare expert b. Interrogatories – may be used at trial to extent permitted by Rules of evidence: impeachment, admission of a party opponent c. Admission – may be used by adverse party for any purpose, binding at trial d. Documents – may be used by any party for any purpose subject to rules of evidence |
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Discovery Devices: Sanctions - 3 step process
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a. Application – appropriate when a party fails to respond or gives evasive or incomplete response
b. Three step process i. Confer – w/other party prior to motion to compel or protect order ii. Compel – make a motion to compel or for a protection order. If ct grants and other party fails, then you can make motion for sanctions iii. Sanctions – contempt of ct, exclusion of evidence, entry of judgment – can get costs and attys fees. Special rule – ct can impose sanctions if parties behavior has been so egregious (no participation in disc, or did not show up for deposition) |
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Discovery Devices; Certification
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Discovery requests, responses, and objections must be signed by attorney or unrepresented party
a. Test – Signature certifies that to the best of signer’s knowledge, info, and belief, formed after reasonable inquiry, the discovery request, or response for objection is i. Consistent with discovery rules and warranted by existing law or good faith argument for change ii. Not interposed for any improper purpose iii. Not unreasonably burdensome or expensive b. Sanctions – mandatory if violation is found |
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Pretrial Conference Order
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Not mandatory – Judge has discretion to hold. Purpose is to simplify or shorten trial, promote settlement. Virtually any topic can be discussed. If judge holds a pretrial conference he must issue a pretrial order to memorialize decisions made. The pretrial order controls the course of subsequent litigation and takes precedence over the pleading. It can be modified at trial to prevent manifest injustice
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Trial: Disposition without trial - Motion attacking pleading
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Motion attacking pleading
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Trial: Disposition without trial - Voluntary dismissal
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i. By P – absolute right to dismiss once w/o prejudice before P rests case
ii. By Written stipulation – w or w/o prejudice, depending on agreement between parties, most common is settlement w/prejudice iii. By leave of court – P waited too long, already rested case, P must show good cause, must file a motion |
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Trial: Disposition without trial - Involuntary dismissal
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i. Failure to comply with rules or orders – w/ or w/o prejudice
ii. Failure to prosecute – failure to take action on record for 12 months iii. Failure of proof at bench trial – dismissal with prejudice if P doesn’t prove case in bench trial |
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Trial: Disposition without trial -
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– CR 56 – No factual dispute, therefore no need to try the case
i. Test – no genuine issue of material fact and moving party is entitled to judgment as a matter of law ii. Judge must view evidence in light most favorable to nonmoving party iii. Any party may move for SJ at any time. Once party shows no gimf, burden shifts to nonmoving party to show there is a gimf |
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Trial: Disposition without trial - Default Judgment
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CR 55 – P may seek when D has failed to respond to complaint
i. Entry of default – D failed to plead or otherwise defend. D entitled to 5 days written notice before entry of default. If D did not appear then he is not entitled to notice. The effect is that D is deemed to have admitted all allegations as to liability, leaving only determination of remedy and tntry of default judgment ii. Default judgment 1. Claim for sum certain – On P’s motion and affidavit of what is due 2. Other claims – judge holds heading where P provides evidence of remedy 3. Limit on P’s recovery – judge may not grant more or a different type of relief then was requested – doesn’t work for PI because P is not allowed to state amount requested |
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Right to Jury Trial
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Is there a right to a jury trial? WA const. provides right to jury trials as at common law as of 1889. Remember 7th am. does not apply to states
a. Demand – either party may demand a jury trial in writing at or before the case is called to be set for trial. Right is waived if no demand b. Test – the overall nature of the action governs whether there is a right. Nature of remedy is most important determinant c. Actions at law – right to jury trial – basic rule is that asking for compensatory damages = jury trial d. Actions in equity – No right to jury trial – seeking specific performance, or injunction sought. Also no right in divorce, child custody, breach of duty to trustee e. Mixed cases – judge will look at gist of action to determine legal or equitable entire case will be either jury or bench trial (no splitting) |
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Jury Selection
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– 6 is default, either party may demand 12. needs to be a concurrence of 5 or 10 depending on jury number
a. Challenging jurors i. For cause – unlimited number – may be based on bias, interest in outcome, inability to be impartial ii. Preemptory – each side has 3, can strike for any reason besides race or gender. If ct. erroneously refuses to remove juror for cause and you use a preemptory challenge to get rid of them or you have a challenge and you choose not to use it – error will be deemed harmless b. Jury Instructions – each side submits, just determines what will be used. Must submit when case is called for trial. Party must object before instructions are given to the jury c. Arguments to the jury – opening and closing. Closing comes after judge has instructed jury. Improper to argue from evidence not presented or admitted at trial, misstating the law, or appealing to jurors emotions d. Objections – waived unless objected to immediately |
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Verdicts
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a. General verdict - do they find for P or D, if they find for P what remedy is appropriate
b. Special verdict – series of factual questions to find what jury found c. General verdict with interrogatories – a check to see if verdict is consistent with answers |
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Motions during and after judgment: Judgment as a matter of law
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i. Time – close of opponents case, close of all the evidence, after jury verdict, but must be w/in 10 days of entry of judgment
ii. Test – No legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party. Must view evidence in light most favorable to nonmoving party |
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Motions during and after judgment: New Trial
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CR 59
i. Time – must be served and filed within 10 days of entry of judgment ii. Test – broad discretion to grant or deny – abuse of discretion standard on appeal. Wont be granted for harmless error iii. Grounds – nonexclusive list 1. Juror misconduct – lying during voidier, relying on extrinsic evidence, decide a case by compromised verdict or chance, quotient verdict, intoxication. Other jurors may make factual statements about juror misconduct but may not discuss how it effected their judgment 2. Insufficient Evidence to justify verdict – verdict is against the manifest weight of the evidence. OR conditional new trial (remittitur and additur) – remittitur is a motion by D that the remedy was excessive, and asks for a new trial. If judge finds this is correct he may order a new trial or P can take a lower amount. Additur is when P thinks judgment is too low 3. Irregularity in proceeding 4. Errors of Law 5. Newly discovered evidence – must be preexisting evidence that could not have been, with reasonable diligence, discovered in time for trial |
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Motions during and after judgment: Relief from judgment
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CR 60(b)
i. Grounds – nonexclusive list – most often used for default judgment 1. mistake, inadvertence, surprise, excusable neglect – have 1 year after judgment to file 2. newly discovered evidence – have 1 year after judgment to file 3. fraud – must file within a reasonable amount of time ii. Test – judge has a lot of discretion |
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Appeals: basis for appeal
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a. Appeal as of right
i. Final judgment – judgment that ends the litigation and leaves nothing for court to do besides enforce judgment. Absolute right to appeal upon final judgment. Most common basis for appellate decision ii. Other appeals as of right – post-trial motion orders (can appeal Judgment as a matter of law), multiple claim case (where one, but not all claims decided, if judge enters judgment and certifies that there is no just reason for delay) b. Discretionary Appeals – only by commission of appellate court - court will only hear these under extraordinary circumstances - an obvious error that will render further proceedings useless |
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Appeals: Scope of Appellate Review
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a. Standards of review – matters of law reviewed de novo, matters of fact reviewed under abuse of discretion?
b. Preservation of errors i. Generally must have objected at trial to preserve the error as grounds for appeal ii. Exceptions – lack of SMJ, manifest error affecting a const. right iii. Harmless error rule |
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Appeals: Time for Appeal
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a. Time – usually depends on J, must appeal within 30 days of entry of judgment or entry of order you are appealing from.
b. Procedure – notice of appeal is filed with the trial court not the court of appeals |
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Effect of judgment: Full faith and Credit
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A. Full Faith and Credit
a. Rule – a valid Judgment from another state or from federal court is entitled to full faith and credit in WA b. Elements – ruling must be final, on the merits, proper jurisdiction |
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Res Judicata (claim Preclusion)
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(only used by D’s) – prevents relitigation of claims previously litigated
a. Definition – D can use it as a defense in a second action as to claims that were or should have been litigated in the first action between the same parties b. Elements – first judgment valid, both suits between same parties, both suits involve the same claim (arising from the same T or O or set of operative facts |
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Collateral Estoppel (Issue Preclusion)
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gives binding effect to subsequent proceedings to issues that were actually argued. Can be used by P or D. prevents relitigation of issues previously decided, can only be used against a party who was present in the prior suit
a. Elements – first judgment valid and both suits involve an identical issue of fact that was i. Actually litigated in the first suit ii. Actually decided, AND iii. Essential to the judgment b. Types i. Defensive Issue preclusion – use of issue preclusion by D against P who was a party in prior lawsuit and who lost on the issue in question ii. Offensive issue preclusion – use of issue preclusion by P against D who was a party in lawsuit who lost on the issue in question. D must have had sufficient incentive and full and fair opportunity to litigate in first lawsuit |
