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Agenda for 11th Class• Admin

– Handouts– Name plates– Lunch. W 10/23– Court visit Tuesday, November 19

• Roughly 1:30-4PM, but keep all afternoon clear• Any conflicts 3-6PM?

– Recording of all classes on iSites• “Recorded Lectures/Media” at left of course iSites home page

– A Civil Action Screening• M 10/28 7PM or T 10/29 7PM or W 10/30 7:30PM?

• Intro to Settlement & ADR• Review Summary Judgment, JMOL and New Trial• Appeals• German Civil Procedure

Assignment for T 10/22 I

• 1995 Exam, Part II– I encourage you to write/type out answer

• I will set up appointments to review– If you start wrote out your answers before today, please be sure to

revise after class in light of our discussion of appeals• Settlement & ADR

– Yeazell pp. 523-24,531-44, 548-50, 555-58• You do not need to read these materials carefully

– Handout (Polinsky)• If you are not quantitatively inclined, you will need to read this

carefully. Polinsky is extremely clear, but it will take time– Questions on last page of that handout

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Assignment for T 10/22 II• Settlement & ADR (continued)

• A Civil Action through p. 448– In what ways does A Civil Action confirm the validity of Polinsky’s

economic model of settlement?– In what ways does A Civil Action contradict Polinsky’s economic

model of settlement or suggest that the real world is more complex than that model?

– Finish A Civil Action by Monday, October 28 • Pay special attention to fees• Given the settlement, how did they calculate how much Schlichtmann

and the other lawyers received?

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Intro to Settlement I• Most cases settle

– Roughly 2/3rds of filed cases settle• Some cases settle even before complaint filed

– Roughly 5% go to trial– Roughly 20% dismissed (Rule 12) or terminated by summary judgment– Roughly 10% other – default judgment, plaintiff failed to prosecute,

referred to arbitration, etc.• Settlement is contract by which plaintiff dismisses case in return for

something valuable from the defendant– Usually money– Can be almost anything – job, house, letter of recommendation, apology– Often non-monetary terms

• Confidentiality/secrecy, return of discovery documents, payment of costs

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Intro to Settlement II• Economic analysis of settlement

– Settlement attractive to parties because saves on litigation costs• Total litigation costs often equal net amount plaintiff recovers• Suppose plaintiff wins $90,000

– Usually pays one third to lawyer. » So plaintiff’s lawyer gets $30,000» So plaintiff nets $60,0000 = $90,000 - $30,000

– Defendant usually pays lawyers roughly same amount: $30,000– So lawyers get $60,000 ($30,000 + $30,000) and plaintiff gets

$60,0000– Defendant pays $120,000 = $90,000 + $30,000

• If settle early, parties can both be better off– E.g. Defendant settles with plaintiff for $80,000– Of course, depends in part on how much parties have already

invested in litigation

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Intro to Settlement III• Economic analysis of settlement (cont.)

– Settlement possible if it makes both sides better off than trial– Need to calculate outcome if case did not settle

• Easy if trial outcome known with certainty• Plaintiff. Judgment minus lawyers fees. 90K -30K=90K• Defendant. Judgment plus lawyer’s fees. 90K+30K=120K• So any settlement amount between 90K and 120K would make both

parties better off• Of course, may fail to settle because of hard bargaining

– If trial outcome uncertain, need to calculate expected value• Expected value = probability that plaintiff will prevail x judgment

amount if plaintiff prevails• Suppose 50% probability that plaintiff will get 100K• Plaintiff better off with settlement greater than:

– (50% x 100K) – 30K = 50K – 30K = 20K• Defendant better off with settlement less than:

– (50% x 100K) + 30K = 50K + 30K = 80K• So any settlement between 20K and 80K would make both parties

better off– Of course, lots of simplifying assumptions….

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Intro ADR• ADR = Alternative Disputes Resolution

– Mediation. Settlement negotiations with assistance from neutral person• Mediator does not have power to imposed settlement

– Arbitration. Adjudication by private judge– Settlement is sometimes classified as ADR

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Review of Last Class I• Summary Judgment

– Judge enters judgment before trial if no genuine dispute over material facts

• Judge does not evaluate credibility of non-moving party’s witnesses, but can decide admissibility

– In general, evidence needs to be admissible at trial• JMOL

– Like SJ, but after trial– Judge grants JMOL if no reasonable jury could find for non-moving party

• New trial– For non-harmless errors at trial

• E.g. admission of prejudicial evidence, improper jury instructions, failure to exclude juror for cause

– For verdict contrary to the great weight of evidence• Easier to get than JMOL, because judge can evaluate credibility of

witnesses

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Review of Last Class II• Burden shifting

– Given Celotex, could defendants in Bias and Penn have won without producing any witnesses?

– Probably not• Plaintiff in Bias had evidence of breach of contract

– Defendant had not purchased insurance as required by contract– So burden shifted to defendant to show that there were no

damages, because decedent was uninsurable drug user– If defendant had not come forward with evidence of drug use, it

would have lost SJ (and probably trial)• Plaintiff in Penn may have had evidence of defendant’s negligence

– Higher speed of later cars– Res ipsa loquitur. This type of accident doesn’t usually happen

unless there is negligence– If defendant didn’t produce eyewitnesses who testified that they

had been watching and did not see a crash, no JMOL

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Review of Last Class III• Declaration v affidavit

– In discussion of SJ, we referred to affidavits– Affidavits are sworn written statements

• Affiant must swear on oath before a notary that the statement is true • Must bear seal of notary before whom statement was sworn

– In recent years, more common to use declarations• No swearing, no notary• Declarant signs document that includes a statement that “I declare

under penalty of perjury that the forgoing is true and correct.”• Under 28 USC 1746, declaration is just as good as an affidavit in

federal court– Similar provisions in most states

• Declaration lacks guarantee of authenticity that notary provides– but declarations are almost always produced by lawyers and

signed in their presence– Lawyer who forges declaration or otherwise uses improper

declaration could be disbarred

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Appeal I• 4 questions: who, when, what, how• Who can appeal

– Side who lost below– Can only appeal to change judgment, i.e. relief or lack thereof

• More or less damages, different injunction– Cannot appeal just to change reasoning– Cross-appeals

• Sometimes both sides want to change the judgment– Suppose plaintiff requested $1,000,000 in compensatory

damages but received only $900,000– Plaintiff can appeal rulings that s/he thinks reduced the damages

» E.g. Jury instructions, exclusion/admission of evidence– Defendant can appeal rulings that s/he thinks allowed liability of

inflated the damages» E.g. ruling that cause of action allowed (e.g. 12(b)(6), denial

of SJ or JMOL, jury instructions, admission/exclusion of evidence

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Appeal II• Cross-appeals (continued)

– Do not need to cross-appeal in order to defend judgment for reasons different from those relied upon by judge

– Suppose defendant makes 12(b)(6) motion arguing invalid legal theory, but judge denies it

– Suppose judge later grants JMOL to defendant– Plaintiff appeals– Defendant does not cross-appeal

• Because is not trying to change the judgment• Cannot appeal just because wants precedent on invalid legal theory

issue– Defendant is free to argue on appeal that, even if appellate court

disagrees with JMOL, appellate court should affirm judgment for defendant because of invalid legal theory

• Appellate court can affirm even though it disagrees with trial court on both 12(b)(6) and JMOL ruling

– Can get complicated….. if in doubt, cross-appeal

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Appeal III• When can appeal

– Can only appeal final judgment– But when judgment is final, can appeal all issues– Examples of final judgments

• Ordinary judgment, Grant of 12(b)(6), grant of SJ, grant of JMOL,– 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

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Appeals IV• What can appeal?

– Issues which are neither waived nor harmless– 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?

• How does court of appeals review district court decisions?– Standards of review (next slides)

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Appeal: 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

• 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, e.g. bench trial– Abuse of discretion standard

• For trial court discretionary decisions– Whether to sanction, if sanction not mandatory– Amount/kind of sanctions– Most evidentiary issues– New trial

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Appeals Questions• 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.”

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Appeals Questions II• Appeals

– 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

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Langbein, “German Advantage…”• 1) Are you convinced that German civil procedure is better than American

civil procedure? Why or why not?• 2) What aspects, if any, of German civil procedure do you think are superior

to American civil procedure? Could we adopt them without changing other aspects of our procedure?

• 3) What aspects of American procedure do you think are superior to German civil procedure? Could they adopt them without changing other aspects of their procedure?

• 4) Do you think that US courts would need a larger or smaller number of judges if we were to adopt German civil procedure ?

• 5) Do you think a bad judge has a bigger negative effect in Germany or the U.S.?

• 6) Europeans are generally willing to pay higher taxes to fund higher quality public services. Can that help explain why Germany and the U.S. have different systems of civil procedure?

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Langbein, “German Advantage…”• Key differences between German and American procedure

– Control of sequence– Discovery– Witnesses– Experts– Appellate review– Judicial career