CIVIL PROCEDURE COPYRIGHT 2010 MR. PATRICK GOULD, J.D., M.A. Gould's Bar Examination Flash Card Webinar Series CRIMINAL PROCEDURE

CIVIL PROCEDURE

COPYRIGHT 2010 MR. PATRICK GOULD, J.D. , M.A.

Gould's Bar Examination Flash Card Webinar SeriesCRIMINAL PROCEDURE

CIVIL PROCEDURE SHOPPING LIST


Gould's Bar Examination Flash Card Webinar SeriesCIVIL PROCEDURE



CIVIL PROCEDURE SHOPPING LIST

1. PLEADINGS 2. SUBJECT MATTER JURISDICTION 3. PERSONAL JURISDICTION 4. TERMINATION WITHOUT A TRIAL 5. PARTIES 6. PRE-TRIAL CONFERENCES 7. PRECLUSIVE EFFECT 8. ERIE DOCTRINE 9. DISCOVERY 10. TRIALS AND APPEALS

PLEADINGS





PLEADINGSPLEADINGS. CONSTRUED LIBERALLY TO DO SUBSTANTIAL JUSTICE.Sets Forth Claims and Defenses. THE COMPLAINT. Begins Action, May Have Alternative Claims. NOTICE PLEADING / SUFFICIENT COMPLAINT. Federal Courts, Liberal.Puts Defendant on Notice of a Claim.1. SHORT AND PLAIN STATEMENT OF JURISDICTION.2. SHORT AND PLAIN STATEMENT OF CLAIM ENTITLING PLAINTIFF TO RELIEF.3. DEMAND FOR JUDGMENT, REMEDIES. SPECIAL MATTERS / PARTICULARITY. Fraud, Mistake, Special Damages, Conditions Precedent.

SERVICE OF PROCESS





SERVICE OF PROCESS

PERSONAL SERVICE. SUBSTITUTED SERVICE. WAIVER OF SERVICE BY MAIL. PROCESS DELIVERED TO DEFENDANT IN ANOTHER STATE. PROCESS DELIVERED TO DEFENDANT'S AUTHORIZED AGENT.

VENUE





VENUEPROPER VENUE. Any District Where a Defendant Resides if Defendants Reside in the Same State.A District in Which a Substantial Basis of the Claim Took Place.A District Where the Defendant is Subject to Personal Jurisdiction.For Land Claims, the District Where the Land Lies. RESIDENCE. A Domicile for Individuals.All District Where a Corporation is Subject to Personal Jurisdiction.

TRANSFER OF VENUE. Defendant Must Assert in Answer / Motion, or Else Defendant Will Waive.Court May Transfer to a District Where the Case Could Have Originally Been Filed, or Dismiss.New Venue Must Apply Choice of Law Rule of the Original Court.FACTORS: Convenience of Parties, Convenience of Witnesses, Interests of Justice. FORUM NON CONVENIENS. Dismissal of Claim for InconvenienceHeavy Burden on Defendant or Court.Plaintiff has Insufficient Evidence for Choice of the Forum.

REMOVAL





REMOVAL

REMOVAL / TRANSER. From State Court to Federal Court in Same District.BY DEFENDANT. Must Move within 30 Days After Service of First Removable Pleading.Case Must Have Original Subject Matter Jurisdiction.NOT PROPER: If Defendant is a Citizen of the Forum State, orClaim is Over One-Year Old.Plaintiff May Not Try to Defeat Removal by Destroying Diversity.REMAND. Court May Remand Back to State Court where there is Lack of Subject Matter Jurisdiction.WAIVER. If Defendant Files a Permissive Counter-Claim in State Court, they Lose Right to Remove, but Not for a Compulsory Counter-Claim.

COUNTER-CLAIMS and CROSS-CLAMS





COUNTER-CLAIMS and CROSS-CLAMSCOUNTER-CLAIMS. FILED WITH ANSWER.PLAINTIFF MUST ANSWER, OR ELSE ALLEGATIONS ARE ADMITTED. COMPULSORY COUNTERCLAIM.ARISES OUT OF SAME TRANSACTION OR OCCURRENCE AS PLAINTIFF'S CLAIM.MUST BE FILED IN PENDING SUIT, OR LOSE RIGHT TO SUE.EXCEPTION. Not Applicable where the Claim had Previously Been Asserted, or Defendant Had Case Dismissed Before Answering the Complaint.IF NO INDEPENDENT SUBJECT MATTER JURISDICTION, MAY ASSERT SUPPLEMENTAL ANCILLARY JURISDICTION. PERMISSIVE COUNTERCLAIM.DOES NOT ARISE OUT OF SAME TRANSACTION OR OCCURRENCE AS PLAINTIFF'S CLAIM.DOES NOT HAVE TO BE FILED IN PENDING SUIT.MUST HAVE SUBJECT MATTER JURISDICTION. CROSS-CLAIMS. CLAIM AGAINST A CO-PARTY.MAY BE FILED IF IT ARISES OUT OF SAME TRANSACTION OR OCCURRENS AS UNDERLYING ACTION.NOT COMPULSORY.MUST SATISFY SUBJECT MATTER JRUISDICTION OR SUPPLEMENTAL JURISDICTION.

DEFENDANT'S ANSWER andMOTIONS





DEFENDANT'S ANSWER and MOTIONS

DEFENDANT'S ANSWER / RULE 12 MOTIONS. NO MORE THAN 20 DAYS AFTER SERVICE.DEFAULT JUDGMENT. If Not Timely.ANSWER. Admit, Deny, Lack of Sufficient Information. Motion for More Definite State, or Motion to Strike.AFFIRMATIVE DEFENSES. Waived if Not Raised.FAILURE TO DENY IS ADMISSION. FRCP RULE 12 DEFENSES. LACK OF SUBJECT MATTER JURISDICTION. May Assert Anytime, Never Waived. FAILURE TO STATE A CLAIM or JOIN PARTIES. May Assert At Any Point through Trial. LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, INSUFFIENT PROCESS OR SERVICE OF PROCESS. Must Assert in First Response in Answer / Motion, or Else Waive.

RULE 11 CERTIFICATION





RULE 11 CERTIFICATION

RULE 11 REPRESENTATION BY ATTORNEY / CERTIFICATION.ATTORNEY'S SIGNATURE REPRESENTS A PROPER PAPER.CERTIFICATION OF:Reasonable Investigation.Not Submitted for Improper Purpose.Factual Contentions or Denials Have, or Are Likely to Have, Evidentiary Support.Legal Claims are Warranted.SAFE HARBOR. 21 Days.

AMENDMENT of the PLEADINGS





AMENDMENT of the PLEADINGSAMDENDMENT OF THE PLEADINGS.PLAINTIFF. As of Right Before Defendant Files Answer.DEFENDANT.As of Right Within 20 Days After Filing Answer.BY LEAVE OF COURT. Plaintiff May Amend Complaint, Where:Justice So Requires.No Unnecessary Delay or Prejudice.Defendant Consents in Writing.RELATION BACK DOCTRINE. Amended Pleadings Must Relate Back to Same Transaction, Conduct or Occurrence as Original Claim. AMENDMENT AT TRIAL.For Evidence of New Claim.Defendant Does Not Object. SUPPLEMENTAL PLEADINGS.For Evidence That Takes Place After Complaint is Filed.

SUBJECT MATTER JURISDICTION





SUBJECT MATTER JURISDICTION

FEDERAL QUESTION. SECTION 1331.CLAIM ARISES UNDER. Constitution, Laws or Treaties of U.S.Plaintiff Must Endeavor to Enforce a Federal Right.WELL PLEADED COMPLAINT RULE. Indicates that Federal Question Must Appear on the Complaint.

SUBJECT MATTER JURISDICTION, con’t





SUBJECT MATTER JURISDICTION, con’t DIVERSITY OF CITIZENSHIP. SECTION 1332. COMPLETE DIVERSITY. All Plaintiffs and All Defendants Must be Domiciled in Different States at Time Case is Filed. DOMICILE. True, Fixed, Permanent Residence. CORPORATIONS. Domiciled in State of Incorporation, and in State with Principal Place of Business. RESIDENT ALIENS. Citizens of State where Domiciled. REPRESENTATION OF ANOTHER. Citizenship of Person Being Represented is Relevant. PARTNERSHIPS. All Must Be Diverse. AMOUNT IN CONTROVERSY. GOOD FAITH ALLEGATION. MORE THAN $75K. Irrespective of Court Costs and Interest. LEGAL CERTAINTY TEST. If Clear that Plaintiff Cannot Recover the Jurisdictional Amount, Diversity is Defeated. PLAINTIFF RECOVERS LESS THAN $75K. Fine. AGGREGATION OF CLAIMS. Claims by One Plaintiff Against One Defendant, Allowed to Join. Claims by Two or More Plaintiffs Against One Defendant, May Join Claims if They Have a Single Undivided Right, Title, or Interest. COLLUSION. Cannot Assign Claim to Third-Party with No Interest in Claim, in Order to Create Diversity. However, Plaintiff May Move to New Bona Fide Domicile Before Filing Complaint.

SUPPLEMENTAL JURISDICTION





SUPPLEMENTAL JURISDICTIONSUPPLEMENTAL JURISDICTION / PENDANT.

STATE LAW CLAIMS.ARISING OUT OF SAME COMMON NUCLEUS OF OPERATIVE FACT AS FEDERAL QUESTION CLAIM. MAY REFUSE FOR: Federal Question Claim Dismissed Early, State Law Complexity, State Law Issues Predominate. SUPPLEMENTAL JURISDICTION / ANCILLARY. DIVERSITY CLAIMS.MAY JOIN PARTIES THAT WOULD HAVE BEEN NON-DIVERSE, OR LACK AMOUNT IN CONTROVERYS, IF CLAIM IS SO RELATED TO ORIGINAL CLAIM THAT THEY ARE PART OF SAME CASE OR CONTROVERSY. JOINDER OF CLAIMS.PLAINTIFF MAY JOIN ALL CLAIMS AGAINST DEFENDANT.

PERSONAL JURISDICTION

COPYRIGHT 2010 PATRICK GOULD, J.D. , M.A.




PERSONAL JURISDICTION

PERSONAL JURISDICTION. DEFENDANT MUST OBJECT TO PERSONAL JURISDICION IN THEIR PRE-ANSWER MOTION, OR IN THEIR ANSWER, OTHERWISE WAIVES.IF GRANTED, CASE DISMISSED. 1. NOTICE AND OPPORTUNITY TO BE HEARD. REASONABLE NOTICE. Reasonably Calculated to Appraise Defendant of Action, and Afford Opportunity to Object. PROPER SERVICE OF PROCESS. NOTICE GIVEN THROUGH PUBLICATION. OPPORTUNITY TO BE HEARD. 2. LONG-ARM / ATTACHMENT STATUES. UP TO A CONSTITUTIONAL STANDARD.BULGE RULE. For Impeadings or Compulsory Counter-Claims.

3. TRADITIONAL BASIS OF IN PERSONUM JURISDICTION. DEFENDANT DOMICILED IN FORUM STATE.DEFENDANT PRESENT AND PERSONALLY SERVED IN FORUM STATE, WITHOUT FRAUD, TRICKEY OR FORCE.DEFENDANT CONSENTS TO SUIT.DEFENDANT ENTERS A GENERAL APPEARANCE WITHOUT RAISING A TIMELY OBJECTION.SPECIAL APPEARANCE. May Not Raise Any Issues Related to Merits of the Claim.DOMICILE. True, Fixed, Permanent Residence. Corporations. State of Incorporation, and Principal Place of Business.

PERSONAL JURISDICTION, con’t





PERSONAL JURISDICTION, con’t4. MINIMUM CONTACTS. CONSTITUTIONAL DUE PROCESS. QUANTITY AND NATURE OF CONTACTS. PURPOSEFUL AVAILMENT. Benefits and Protections of Forum State.FORESEEABILITY OF SUIT. RELATEDNESS OF CONDUCT TO CLAIM. GENERAL. Systematic and Continuous Dealings with Forum State. Defendant Liable for Claims Involving Activity Outside of Forum State.SPECIFIC. Limited and Sporadic Contact with Forum State. Cause of Action Must Arise Out of Specific Act in Forum State.In Rem / Quasi In Rem. Land Claims, Requires Adequate Notice. INTEREST OF THE FORUM STATE IN PROTECTING ITS CITIZENS. Against Wrongful Activity. FAIR PLAY AND SUBSTANTIAL JUSTICE.Unreasonable Burden on Defendant in Defending Claim.Severe Disadvantage.Judicial Determination.

TERMINATION OF A CLAIM WITHOUT A TRIAL





TERMINATION OF A CLAIMWITHOUT A TRIAL

VOLUNTARY DISMISSAL. Plaintiff May Voluntarily Dismiss Claim Before Defendant Answers, and Claim Will Be Dismissed Without Prejudice. DEFAULT JUDGMENT. Defendant Fails to Respond to Complaint Within Twenty Days After Service of Process. FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED / DEMURRER. Defendant May Move to Dismiss Prior to Filing Answer to Complaint. Allegations of Plaintiff are Considered True. Plaintiff Could Not Possibly Win Claim. Plaintiff May Be Given Opportunity to Amend Complaint. No Interlocutory Appeals are Allowed. If Evidence is Presented, May Be Treated as a Summary Judgment.

TERMINATION OF A CLAIM WITHOUT A TRIAL, con’t





TERMINATION OF A CLAIM WITHOUT A TRIAL, con’t

JUDGMENT ON THE PLEADINGS. Same as a Motion for Failure to State a Claim, Except it is Filed After Defendant Has Filed Their Answer to the Complaint. SUMMARY JUDGMENT. Movant Presents Affidavits / Evidence / Fruits of Discovery. Non-Movant May Not Rely on Pleadings, But Must Also Submit Affidavits / Evidence / Fruits of Discovery. Construed in Light Most Favorable to Non-Movant. GRANTED FOR MOVING PARTY WHERE: No Genuine Issue of Material Fact. Moving Party is Entitled to Judgment as a Matter of Law.

PARTIES





PARTIESREAL PARTY IN INTEREST. PERMISSIVE JOINDER OF PARTIES.PLAINTIFF OR DEFENDANT.CLAIMS MUST ARISE OUT OF SAME TRANSACTION OR OCCURRENCE AS ORIGINAL CLAIM.CLAIMS MUST RAISE AT LEAST ONE COMMON QUESTION OF FACT OR LAW.SUBJECT MATTER JURISDICTION MUST BE SATISFIED.PREVENTS MULTIPLICITY OF LAWSUITS. COMPULSORY JOINDER.NECESSARY OR INDISPENSIBLE PARTY. Needed for Just Adjudication. MUST BE JOINED WHERE: Complete Relief Cannot be Given Without Their Presence, Multiple Lawsuits May Result, Final Determination of the Lawsuit may Impair Their Ability to Protect Their Interest, or Their Absence Exposes Existing Parties to Risk of Multiple Obligations. JOINDER NOT FEASIBLE. MAY NOT DESTROY DIVERSITY OR VENUE. Court Must Decide Whether in Equity and Good Conscious the Action Should Proceed.FACTORS: Alternative Forums for Full Joinder, Likelihood of Harm, Whether Court Can Shape Relief, Whether Plaintiff Would be Deprived of an Adequate Remedy. MISJOINDER AND NONJOINDER.

PARTIES, con’t




COPYRIGHT 2010 PROFESSOR GOULD, J.D. , M.A.

PARTIES, con’t

IMPLEADER. THIRD-PARTY DEFENDANT.CLAIM MUST BE DERIVATIVE.PLAINTIFF MAY IMPLEAD IF NEW CLAIM ARISES OUT OF SAME TRANSACTION, CONDUCT OR OCCURRENCE.SUBJECT MATTER JURISDICTION.DEFENANT MAY IMPLEAD AS OF RIGHT NOT LATER THAN TEN DAYS AFTER SERVICE OF ANSWER, OTHERWISE, PERMISSION OF COURT.BULGE RULE.

PARTIES, con’t





PARTIES, con’t

INTERVENTION. ABSENTEE MAY JOIN A PENDING SUIT AS PLAINTIFF OR DEFENDANT.TIMELY MOTION FOR INTERVENTION.AS OF RIGHT. Claims an Interest in Property or Transaction, Their Interest Not Adequately Represented, and Their Interest May be Harmed.PREMISSIVE INTERVENTION. Court's Discretion, Party has a Claim or Defense with at Least One Common Question, and New Party has Independent Subject Matter Jurisdiction. INTERPLEADER.STAKEHOLDER. Money or Property.Forces All Potential Claimants into a Single Lawsuit.Prevents Multiplicity of Suits and Possibility of Inconsistent Results.RULE INTERPLEADER. Must Satisfy Subject Matter Jurisdiction.STATUTORY INTERPLEADER / SECTION 1335. Liberal Subject Matter Jurisdiction.

CLASS ACTIONS





CLASS ACTIONS

CLASS ACTIONS. NUMEROSITY. COMMONALITY. TYPICALITY. REPRESENTATION. TYPES OF CLASS ACTION CLAIMS.INJUNCTION OR DECLARATORY RELIEF. PREJUDICE. DAMAGES. NOTICE.OPTING OUT.

BINDING JUDGMENTS. SUBJECT MATTER JURISDICTION.Federal Question or Diversity of Citizenship.DIVERSITY. Representatives Must Show Full Diversity.AMOIJNT IN CONTROVERSY. Traditional Rule is Every Member Must Claim More Than $75K, Modern Trend is Only Representatives. SETTLEMENT.APPROVAL BY COURT.

PRE-TRIAL CONFERENCES





PRE-TRIAL CONFERENCES

PRE-TRIAL CONFERENCES. PURPOSES. Expedite Disposition, Establish Control, Discourage Wasteful Activity, Amend Pleadings, Eliminate Frivolous Claims, Rule in Advance on Admissibility of Evidence, Improve Quality through Preparation, Facilitate Settlement and Just, Speedy, Inexpensive Disposition of the Action.SCHEDULING ORDER. AFTER CONFERENCE. Controls Course of Action, Unless Court Modifies for Good Cause.FINAL PRE-TRIAL ORDER. TRIAL PLAN. MUST BE ATTENDED BY AT LEAST ONE ATTORNEY FOR EACH SIDE. COURT MAY MODIFY TO PREVENT MANIFEST INJUSTICE.SANCTIONS. UPON MOTION, OR ON ITS OWN, COURT MAY ISSUE SANCTIONS ON ATTORNEY OR PARTY FOR: Failure to Appear at Any Pre-Trial Conference, Lack of Preparation for Any Pre-Trial Conference, Lack of Participation at Any Pre-Trial Conference, Fail to Obey a Court Order. SANCTIONS. Fees Incurred Due to Non-Compliance, Unless Substantially Justified or Unjust.

PRECLUSIVE EFFECT





PRECLUSIVE EFFECT

PRECLUSIVE EFFECT OF PRIOR ADJUDICATION. RES JUDICATA. CLAIM PRECLUSION. SAME PARTIES. FINAL JUDGMENT ON THE MERITS. SAME CAUSE OF ACTION. MERGER AND BAR.

COLLATERAL ESTOPPEL. ISSUE PRECLUSION. Issue of Fact or Law. FINAL JUDGMENT ON THE MERITS. REASONABLY NECESSARY TO SUPPORT JUDGMENT. FINAL JUDGMENT. FULL AND FAIR OPPORTUNITY TO LITIGATE. MUTUALITY. Not Always Followed, Modernly, Non-Original Parties May Assert Offensively or Defensively. Factors Considered: Full and Fair Opportunity to Litigate Original Claim, Foreseeability of Multiple Claims, Foreseeable Joinder, Inconsistent Judgments.

THE ERIE DOCTRINE / APPLICABLE LAW





THE ERIE DOCTRINE / APPLICABLE LAW

THE ERIE DOCTRINE. AVOID INEQUITABLE ADMINISTRATION OF LAWS.IN DIVERSITY CASES:Federal Court Must Apply State Substantive Law.Federal Court Must Apply Federal Procedural Law.Not Applicable to Federal Common Law.NO CONTROLLING FEDERAL LAW. Where There is No Controlling Federal Procedural Law, the Judge May Use a Federal Rule Only Where it is Not Substantive. Factors That Help Determine if a Law is Substantive, Include:OUTCOME DETERMINATIVE. DETERMINATION OF APPLICABLE STATE LAW. BALANCING OF INTERESTS. FORUM SHOPPING.

DISCOVERY





DISCOVERYSCOPE OF DISCOVERY. RELEVANT INFORMATION. ATTORNEY WORK-PRODUCT RULE / PRIVILEGE. Mental Impressions, Conclusions, Opinions and Legal Theories of Attorney Are Always Protected.WORK PRODUCT. Work Prepared in Anticipation of Litigation by Party or Agent, is Not Discoverable. EXCEPTION. Substantial Need, and Cannot Obtain Materials without Undue Hardship. REQUIRED DISCLOSURE. INITIAL DISCLOSURE.DUTY TO SUPPLEMENT.EXPERTS. Written Report.PRE-TRIAL. Trial Evidence. DISCOVERY CONFERENCES. PARTIES. Consider Claims and Defenses, Settlement, Mandatory Disclosure, and Develop Proposed Discovery Plan.

DISCOVERY TOOLS





DISCOVERY TOOLS

DISCOVERY TOOLS. MUST BE SIGNED BY ATTORNEY. Under Oath is Substantive Material.NO WRONGFUL PURPOSE. Harassment, Unnecessary Delay, Needlessly Increase Cost of Litigation. DEPOSITIONS. IN-PERSON QUESTIONING WITH ATTORNEYS PRESENT.ORAL OR WRITTEN.UNDER OATH.NOTICE MUST BE PROPERLY SERVED.NON-PARTY NOT REQUIRED TO ATTEND UNLESS SUBPOENAED.AT TRIAL, CANNOT OBJECT TO EVIDENTIARY QUESTION, THAT COULD HAVE BEEN REMEDIED DURING A DEPOSITION.TEN DEPOSITIONS, UNLESS COURT ORDER OR STIPULATION OF PARTIES OTHERWISE.USED TO IMPEACH AT TRIAL.

DISCOVERY TOOLS, con’t






REQUESTS TO PRODUCE. REVIEW AND COPYING OF DOCUMENTS OR THINGS, OR PERMIT ENTRY ON PROPERTY FOR INSPECTION.RESPONSES MUST BE MADE WITHIN THRITY DAYS. INTERROGATORIES. QUESTIONS TO ANOTHER PARTY IN WRITING, WITH RESPONSE IN WRITING.UNDER OATH.RESPONSES MUST BE MADE WITHIN THRITY DAYS.TWENTY-FIVE UNLESS COURT ORDER OR STIPULATION OTHERWISE.

PHYSICAL OR MENTAL EXAMINATION. NEED COURT ORDER.NEED TO SHOW THAT THE HEALTH OF A PARTY IS IN ACTUAL CONTROVERSY, AND THE INFORMATION IS NOT AVAILABLE IN ANOTHER PLACE.PERSON EXAMINED MAY OBTAIN REPORT UPON REQUEST, BUT MAY WAIVE DOCTOR-PATIENT PRIVILEGE.







REQUESTS FOR ADMISSION. REQUEST TO ANOTHER PARTY TO ADMIT THE TRUTH OF A DISCOVERABLE MATTER.FAILURE TO DENY IS ADMISSION.RESPONSES MUST BE MADE WITHIN THRITY DAYS. ENFORCEMENT OF DISCOVERY AND SANCTIONS. FAILURE TO PRODUCE MATERIALS.PARTY FAILING TO PRODUCE MAY SEEK PROTECTIVE ORDER IF DISCOVERY IS OVERLY BURDENSOME, OR TRADE SECRETS ARE INVOLVED.SANCTIONS TO COMPEL DISCOVERY. Court Order to Produce Discovery Materials, and Provide Costs to Other Party.FAILURE TO COMPLY WITH COURT ORDER. Court May Impose Establishment Order Declaring Facts Requested as True, and Striking the Pleadings of Withholding Party. If Bad Faith, Court May Dismiss Claim, or Enter Default Judgment, and Party May be Held in Contempt of Court. Attorney May be Liable if They Advised Client to Participate in Wrongful Activity.

TRIALS AND APPEALS





TRIALS AND APPEALSJURY TRIAL.Demand Must be Made Within Ten Days After Service of Last Pleading Raising a Triable Issue for a Jury. SEVENTH AMENDMENT. Allows Jury Trials for Actions at Law.ACTIONS AT EQUITY. No Jury Trials.BIFURCATED. For Cases Involving Issues of Both Law and Equity. JURY SELECTION / Voir Dire.UNLIMITED STRIKES FOR CAUSE.THREE PRE-EMPTORY STRIKES. MOTION FOR JUDGMENT AS A MATTER OF LAW / DIRECTED VERDICT.REASONABLE PEOPLE COULD NOT DISAGREE.COURT TAKES AWAY FROM JURY AND ISSUES DIRECTED VERDICT.EVIDENCE CONSTRUED IN LIGHT MOST FAVORABLE TO NON-MOVING PARTY.Plaintiff Moves at Close of All Evidence, and Defendant Moves at Close of Plaintiff's Evidence or at Close of All Evidence.

TRIALS AND APPEALS, con’t






RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW. Formerly Called Judgment Notwithstanding the Verdict.FILED BY LOSING PARTY. Must Have Filed Original Motion for Judgment as a Matter of Law, or Barred From Asserting a Renewed Motion.NOT LATER THAN TEN DAYS AFTER ENTRY OF JUDGMENT.IF GRANTED, THEN REVERSAL.REVERSAL IS PROPER WHERE: Reasonable People Could Not Disagree on the Result, and Evidence Construed in the Light Most Favorable to the Non-Moving Party.

MOTION FOR A NEW TRIAL.FILED NOT LATER THAN TEN DAYS AFTER ENTRY OF JUDGMENT.GRANTED WHERE ERRORS AT TRIAL REQUIRE NEW TRIAL.SUFFICIENT ERROR. Prejudicial Misconduct of Party or Juror, Prejudicial Evidentiary Hearing, Incorrect Jury Instructions, New Evidence, Inadequate or Excessive Verdict, or Judgment Against the Weight of Evidence.HARMLESS ERROR. Error in Admission of Exclusion of Evidence Not Enough to Grant a New Trial, Set Aside a Verdict, or Otherwise Disturb a Judgment or Order, Unless Inconsistent with Substantial Justice or Rights of the Parties.







APPEAL. FINAL JUDGMENT RULE. Losing Party May Appeal. INTERLOCUTORY REVIEW. Occurs Before Final Judgment on Merits For Injunctions, Receivers, Patent Infringement, Property.INTERLOCUTORY APPEALS ACT. Appeal of Non-Final Order Proper when there is a Controlling Issue of Law, and Substantial Grounds for Differences of Opinion. COLLATERAL ORDER RULE. Appellate Court has Discretion to Hear and Rule on an Issue, if the Issue is Distinct from the Merits of the Action, There is an Important Legal Question Raised, and it is Not Reviewable Except After a Final Determination on the Merits of the Action.EXTRAORDINARY WRIT. Appellate Court May Order a Trial Court to Make or Vacate an Order to Enforce a Clear Legal Duty, and Appellate Court May Review Orders Granting or Denying Class Actions within Ten Days of Order.

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CIVIL PROCEDURE COPYRIGHT 2010 MR. PATRICK GOULD, J.D., M.A. Gould's Bar Examination Flash Card Webinar Series CRIMINAL PROCEDURE