Agenda for 13th Class

1. Agenda for 13th Class • Name plates out • Summary Judgment

2. Next Class: JMOL & New Trial • FRCP 50, 59 • Yeazell 643-64 • Questions to think about / Writing Assignment • Briefly summarize Penn • Your summary should include an answer to Yeazell, p. 652 Q 1a • Yeazell p. 562ff Q1b-c, • In Penn, what is the difference between a judge making a credibility determination that Bainbridge was not a credible witness (which the judge is not allowed to do) and a judge deciding that Bainbridge’s testimony was “suspicious, insubstantial, and insufficient…simply incredible” (p. 652) • In Penn, what arguments could plaintiff’s lawyer have made to have had a better chance of defeating judgment as a matter of law? • In Penn, if you think the Supreme Court erred in affirming the District Court’s granting of JMOL, do you think new trial would have been appropriate? • Briefly summarize Lind • Your summary should include an answer to Yeazell p. 662 Qs 1-3 • Is it easier or harder for a party to get JMOL or new trial? Does this make sense? Why or why not? • Optional. Glannon Ch. 24

3. Summary Judgment I Burdens of proof Burden of production. Who wins if neither side produces any evidence If plaintiff has the burden of production, then defendant wins if plaintiff presents no evidence Burden of persuasion. Preponderance of evidence (civil), beyond reasonable doubt (criminal) If plaintiff has burden of persuasion and relevant standard is preponderance of evidence, the defendant wins if plaintiff and defendant each present evidence that is equally persuasive In general Burden of production and persuasion go together Plaintiff usually has both burden of production and persuasion Except defendant usually has burden of production and persuasion on defenses Burden of proof is very important for SJ Person without proof has much easier time winning SJ So SJ is usually defendant’s motion 3

4. Summary Judgment II Logical Structure of law suit Plaintiff must usually prove several things to win Negligence: Duty AND Negligence AND Proximate Cause Breach of Contract: Contract AND Breach Defendant can usually win by proving just one thing Disproving one element of plaintiff’s cause of action Negligence: Defendant wins if No Duty OR No negligence OR No Proximate Cause Beach of Contract: Defendant wins if No contract OR No breach Showing that plaintiff hasn’t proven one element Same logical structure Proving one affirmative defense Assumption of Risk, Condition precedent, etc. 4

5. Summary Judgment III Celotex Party who does not have burden of production can prevail by pointing out that other party has put forward no evidence This means that defendant need not prove its version of the facts, but rather can merely point out weakness of plaintiff’s case Makes sense, because defendant can prevail using same strategy at trial Summary judgment is not “a disfavored procedural shortcut.” Mechanics Each side submits memoranda discussing evidence and appendix of documents, deposition transcripts, affidavits, and other evidence Affidavits are sworn written statements Affidavits and deposition transcripts substitute for live testimony To be useful, statements must be such that, if made live at trial, they would be admissible First hand knowledge, not hearsay, facts (not opinions, unless expert) 5

6. Summary Judgment IV Legal Standard “no genuine dispute as to any material fact and movant entitled to judgment as a matter of law.” Undisputed facts show that moving party prevail No reasonable juror could find for non-moving party Judge is not supposed to determine credibility Especially of non-moving party’s witnesses In theory, non-moving party could prevail by showing the moving party’s witnesses are not credible (just as could at trial) But that is rare. Hard to challenge credibility at SJ. Judges usually believe moving party’s witnesses, unless non-moving party can produce witness to contract them Summary judgment forces parties to do thorough discovery Must depose witnesses etc., so have information to oppose SJ 6

7. Summary Judgment Questions I • Briefly summarize Celotex and Bias • In your summaries of Celotex, be sure to discuss what evidence each side submitted to the court?  Why was plaintiff’s evidence not clearly sufficient to defeat defendant’s  summary judgment motion?  Why was defendant’s evidence possibly sufficient for its summary judgment to be granted? • In your summary of Bias, be sure to discuss what evidence each side submitted to the court?  Why did the court grant summary judgment to the defendant? • Yeazell pp. 581ff Qs 1, 2c • Yeazell pp. 588ff Qs 1c, 5 • Yeazell p. 596 Q4 • Questions on next page

8. Summary Judgment Questions II In Celotex,what could the plaintiff’s lawyer have done during discovery to have had a better chance of defeating defendant’s motion for summary judgment? In Celotex, what, if anything, could plaintiff’s lawyer do after the Supreme Court issued its opinion in order to win the case for plaintiff? In Bias,  is it possible that the plaintiff would have prevailed at trial?  How?  If your answer is “yes,” why wasn’t he able to defeat the summary judgment motion? If you were the plaintiff’s lawyer in Bias, what could you have done which might have helped you defeat summary judgment? 8

9. Standards of Review • 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

10. 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