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51 Cards in this Set

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  • Back
  • 3rd side (hint)
12 Litigation Steps
1. An event or transaction that gives rise to potential litigation
2. Gathers the facts, investigates and research
3. Initiate the suit
4. D responds
5. Motions for “judgment on the pleadings”
6. Discovery
7. Motion for Summary Judgment
8. Final Pretrial Conference
9. Trial
10. Entry of judgment
11. “Post-Judgment motions”
12. Appeal or “execute” on the judgment
Different Types of Facts to Investigate
liability, remedies, procedure (jurisdiction, etc.)
FRCP for Fact Gathering, Investigation
FRCP for lawsuit initiation
FRCP 3-5 & 7-11
FRCP for D response
FRCP 5, 7-12, 55
Three options for how D can respond
1. File a pre-answer motion (FRCP 12) by Challenging jurisdiction, cause of action, etc
2. Answer (FRCP 12, 13)(Generally, if pre-answer motion doesn't work)with affirmative defense - Counterclaims and/or Cross-claims – [Keep this in mind, can D come back and fire at you?]
3. Do nothing.
FRCP for Motions for “judgment on the pleadings”
FRCP 12(c) 1-5
What is Motions for “judgment on the pleadings”?
If still early enough not to delay the trial, a party may move for judgment on the pleadings
FRCP for Discovery
FRCP 26-37, 45
Types of Discovery
o Interrogatories
o Depositions
o Medical and physical exams
FRCP for Motion for Summary Judgment
Scope of Motion for Summary Judgment
Doesn’t have to be all or nothing and it doesn’t resolve everything
FRCP for Final Pretrial Conference
Do you have to have the trial scripted at the stage of Final Pretrial Conference?
FRCP for Trial
FRCP 50-52
What steps are taken during a trial to make a decision?
o Motion for judgment as a matter of law
o Jury instructions
o Verdict
FRCP for Entry of judgment
FRCP for Post-Judgment motions
FRCP 59-60
A proper judge's role
To be the referee of the case by managing, scheduling, planning, give guidance to both parties
6 Conditions for moral force of a judgment be at maximum
1. The judge doesn’t act on his own initiative
2. The judge has no direct or indirect interest (even emotional) in the outcome of the case
3. The judge confines his decision to the controversy bf him and attempts no regulation of the parties’ relations
4. The case presented to the judge involves an existing controversy, and not merely the prospect of some future disagreement
5. The judge decides the case solely on the basis of the evidence and arguments presented to him by the parties
6. Each disputant is given ample opportunity to present his case
Three things a judge can do independently but not all together.
1. bring out new issues and bring in witness
2. deny giving more time to do things
3. Appoint a lawyer to do things
FRCP in Judge's Role
Available Arguments that may justify a judge sanctioning for parties not settling. (FRCP)
1. Rule 16(c)Trying to save the court’s money and time
2. A judge asked to settle in good faith, during a set meeting using courts time, they met, and didn't use the time wisely, therefore wasted court's time.
Applicable FRCP and its approach to matters historically addressed through NUMEROUS FORMS OF ACTION (writs)
Rule 2: One form of action. [There is one form of action – the civil action]
Applicable FRCP and its approach to matters historically addressed through THE DECLARATION
Rule 3: The complaint
Applicable FRCP and its approach to matters historically addressed through D's OPTION OF "PLEA IN BAR"
Rule 12: Denying (it wasn’t me, not true) the complaint
Applicable FRCP and its approach to matters historically addressed through D's OPTION OF "DILATORY PLEA"
Rule 12(b)(1-5,7): Not answering the merits, there’s a procedural problem
Applicable FRCP and its approach to matters historically addressed through D's OPTION OF "DEMURRER"
Rules 12(b)(6), 12(c), 7(c): No remedy to the action. “So what”. 7(c) says there are no more demurrer.
How did English Common Procedure zero-in on a issue?
Pleadings after pleading, under English Common Law Pleading, of using pleading to narrow the issues.
How do we narrow down in issues now? (Applicable FRCP)
Rule 8(a): Prof thinks this falls pretty short. We don’t get that case fact searching opportunity like English Common Law Pleading. Instead of this back and forth, you do discovery. (FRCP 16)
What's the difference btw English Common Law demurrer and current way (Applicable FRCP)
Rule 12(b)(6) The motion to dismiss : Equivalent of Demurrer. Now, even if your motion is dismissed, you get to move away from that central focus and bring up other defenses later, whereas in English court, you get no chance to prove with evidence, and when central focus is found, they’re done, they don't get the discovery phase.
What's the difference in pressure on P to plead the right case btw English Common Law and FRCP?
English Common:P has to come up with the right writ, so it’s a lot of pressure.

1. There’s only one form of action (FRCP12)
2. P may plead several causes of action in the alternative, FRCP 8(e)(1)
3. P may seek several forms of relief in 8(d)(2) – you don’t have to pick one.
4. Rule 15, we can amend the fight you picked.
FRCP has 4 reasons
What's the difference in how English Common Law views pleadings and how FRCP does?
ECL: Pleading as central focus to reach its merits.

FRCP: Rule 8, talks about its just a document that contains three elements and de-emphasized in 8(f).
In contrast to ECL of using pleadings to narrow issues and reach it's merits, how does the FRCP way reach it's merits?
Rule 1 “second sentence” Just, speedy… We want to resolve cases on merits, by not having to worry about the technical rules, that English Common Law relied on.
Three purposes of Pleading
1. Notice of D of allegations
2. Notice to court of allegations
3. Permit an Early Decision on the Merits (Is there a right to relief? Can law be applied to this situation?)
How do we frame pleading rules that –
Permit P to assert legitimate claims (despite limited info) AND
Protect defendants from illegitimate claims?
Prior investigation, with a signature of the attorney, reasonable basis for the allegations. This Rule 11, puts a lot of pressure to the attorneys to be the gate keepers of true information.
3 elements and FRCP
Why is it that they might NEED MORE info in a pleading? (You get a summons and complaint saying that; “Sometime earlier, you were driving in excess speed limit.” How would you respond to it? [You would ask for more information.] Why?)
1. Tactical Reasons: So you know how to respond.
2. Legitimate Reasons: To find something that will give them off the hook, or something “they can be held liable” so it won’t be strict liability. Find defenses in the text. (For Harbor, in the foot note, it says OR act of god, so this way, D could find this as an defense if it’s in the C.
Why it’s okay to not have that much info in pleading a case
Because you CAN find out what happened in that 5 months and Sometimes, parties don’t have that information so you have to open the court to them, but you can’t open to frivolous claims.
Positive consequences of alternative pleadings (6)
1. P doesn’t have to file two or more separate pleadings (Can use one set of facts for two+)
2. Avoids risk of inconsistent results: bar owner winning a case against him by blaming the truck driver, vice versa.
3. Saves the court effort of trying the same matters twice
4. By suing two parties at once, there is more likelihood that each D will help P make out a case against the other
5. Allow a party to have options in the case
6. Come in handy for product liability case: Sue the manufacture, company who sold it, the owner, etc bc you don’t know who was at fault for that faulty product
Negative consequences of alternative pleadings (2)
1. Cases like this (inconsistent) will arise and will be confusing to the jury when trying to figure out who should recover under what count.
2. Inconsistent pleadings is a sign of uncertainty, which makes a case weaker
When can you say an alternative pleading's rights are abused?
When P knows the truth about something, but goes ahead and brings up an alternative.
What can a court/person do if the person making allegations was not “there” at the time things happened?
They can make allegations on “information and belief”
What has been 2 significant amendments to Rule 11?
1. 1983 – Too much sanctioning and deterred lawyers from going to court.

2. 1993 – Made the imposition of sanctions discretionary, and reoriented the choice of sanctions towards deterrence and away from compensation. This amendment sort of reduced the “safe harbor” – do whatever you want, and when you get filed with a motion, get out of the case and you’ll be fine principal.
What is an affect of too much sanctioning under Rule 11?
Deter lawyers from making appropriate and legitimate claim
What is an affect of little sanctioning under Rule 11?
Lawyers start making improper submissions hoping that no one will notice.
What justifies the contradictions between requiring hard facts under Rule 11 and need for discovery?
If you could have found out relatively easily without the process of discovery, you should have!

Also, don’t sue on a ‘lost cause’ evidence, like something you and everyone should know that you will never find.
Steps necessary under FRCP 11 for a defendant to obtain an imposition of sanctions against a plaintiff
1. Find a cause of sanction because the material violated what’s outlined in Rule 11(b)(1-4)
2. File a motion for sanction (You give the motion to D, like a “warning”, then after 21 days, it goes to file. So this will give P time to think about it.)
Steps necessary under FRCP 11 for a federal trial court judge to impose sanctions against a plaintiff
1. Find a cause of sanction because the material violated what’s outlined in Rule 11(b)(1-4)
2. Enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) respect thereto
When can Rule 11 be applied during the trial steps?
Rule 11 can apply during any stage of the pleading stage, other papers, representation to court – by the court or the opposing party. Pretty much whenever, with few exceptions.
Where can you find obligations FRCP imposes upon a lawyer preparing a pleading?
Rule 11(b)(1-4)
What does the court say in submitting a insufficient pleading due to statute of limitations?
Rule 11 says it’s okay, it’s understandable