Agenda for 15th Class

1. Agenda for 15th Class • Admin • Handouts • 1995 Exam question • slides • Name plates • F 2/28 is mock mediations • Class will go until noon • Appeals • Next class • Any questions we didn’t discuss oday • 1995 Exam Question • Writing Groups 4,5,and 6 (out of order)

2. Appeal: Who • Who can appeal • Side who lost below • Can only appeal to change judgment, i.e. reliefor lack thereof • More or less damages • Different injunction • Often both sides can appeal • Cross appeals • Cannot appeal just to change reasoning • If won, can defend judgment on appeal with reasons rejected by trial court • Need not cross appeal • Plaintiff sues on contract and tort theory. Both give same damages. Court grants SJ to defendant on tort theory, but gives judgment to plaintiff on contract theory. Defendant appeals. Plaintiff can argue tort theory on appeal. • If in doubt, cross appeal.

3. Appeal: Finality • Can only appeal final judgment • Rule is about when, not what • But when judgment is final, can appeal all issues • Examples of final judgments • Grant of 12(b)(6), grant of SJ, grant of JMOL, judgment in accordance with verdict • Examples of non-final judgments • Denial of 12(b)(6), denial of sanctions, discovery rulings, denial of SJ, grant of new trial, denial of JMOL, • Interlocutory appeals allowed if both District Court and Appellate Court agree. 28 USC 1292(b) • Some other exceptions

4. Appeal: Waiver & Harmless Error • Waiver • Can only raise issue on appeal if raised issue properly in trial court • Cannot challenge legal theory, if did not challenge in answer or 12(b)(6) motion • Cannot challenge sufficiency of evidence, if did not make JMOL motion • Cannot challenge particular evidence if did not object at trial (or before) • Harmless Error • Court of appeals only overturns judgment if error is not harmless • Court has to decide whether outcome at trial is likely to have been different if error was not made • Did error make real difference at trial? • These 2 rules are very important • Litigators need to consider when litigating and considering appeal • Clerks to appellate court judges will use all the time

5. Appeal: Standards of Review I • De novo (non deferential) • Court of appeals examines issue afresh and reverses if it disagrees with the trial court, even if it thinks that issue was close call and trial court decision had strong arguments to support it • For legal issues • 12(b)(6), SJ, JMOL • Purely legal issues in discovery • Deferential standards • Court of appeals only reverses if it thinks that the trial court made a serious error • Clearly erroneous standard • For trial court determinations of fact • Bench trial • Purely factual aspects of discovery

6. Appeal: Standards of Review II • Deferential standards (continued) • Abuse of discretion standard • For trial court discretionary decisions • Whether to sanction, if sanction not mandatory • Amount/kind of sanctions • Some evidentiary issues • New trial

7. Appeal Questions I Go back through all the cases read so far in Civil Procedure If the case was decided by an appellate court, what standard of review did the court use and why? If the case is not explicit about the standard of review, what standard should the court have used? If the case was decided by a trial court, what standard of review should an appellate court use if the issue(s) resolved in the case were appealed? Note that if more than one issue is appealed, the appellate court may apply different standards of review to each issue. Briefly summarize Anderson and Harnden In your summary of Harnden, include an answer to Yeazell p. 712 Qs 1f, 2 How could you argue that the district court judge’s error in Harnden was not harmless? In doing so, consider why it is important that an expert report be submitted in the form of an “affidavit or sworn statement.” 7

8. Appeal Questions II It is relatively easy for a district court’s decision to grant JMOL to be overturned on appeal (because the standard of review is de novo) but relatively hard for a district court’s decision to grant new trial to be overturned on appeal (because that decision is reviewed under the more deferential “abuse of discretion” standard” and may not be reviewable at all until after the second (or third or fourth) trial). Does this make sense? Why or why not? Assuming that the jury returned a verdict for the plaintiff and that the defendant moved for JMOL and new trial, who can appeal in each of the following 4 situations and when. Judge grants JMOL and conditional new trial Judge grants JMOL and denies conditional new trial Judge denies JMOL but grants new trial Judge denies JMOL and denies new trial 8