Civil Procedure Revised Notes
n Introduction
o The legal system is fragile – it yields unsatisfactory resolutions of legal issues.
o The focus is on federal rules of civil procedure.
o Federal rules were invented as a body in 1938.
o Previously, rules were adopted from different state rules.
o Many states have adopted federal rules.
I. Law and Fact at Trial: Roles of Jury, Judge, and Parties
A. Factual Uncertainty: (Supp. 2-13 (and 1028-1035 as background)).
1. Discussion Question 1: Trampling of the petunias.
a. 10 people testified it was a black horse, 1 person testified it was a white horse.
b. D has a white horse.
c. Preponderance of the evidence means the preponderance of the evidence that you believe is believable.
i. The number of witnesses have nothing to do with it – it is all about the quality of the evidence
· To determine quality of evidence/witness:
* What does the witness mean?
i.e., If one witness said, “I saw a sorrel horse,” then the first question must be, what does the witness mean by “sorrel?”
* Does the witness believe what he is telling me?
Is the witness being honest?
¨ i.e., Does he have a motive or interest regarding the outcome?
* What was the witness’s capacity to observe?
* What was the witness’s opportunity to observe?
* What is the quality of the witness’s memory?
· It is impossible to be 100% confident in any of these criteria.
d. Bays Theorem of Probability: Formula used to evaluate probabilities in light of new information.
2. Collins:
a. No statistical evidence for the estimates.
b. The factors are not entirely independent.
c. What is the size of the suspect population?
i. Is it the whole world, or a specific city?
· What if the suspects are on a trip around the world and they run out of money, so they have to snatch the purse to get home?
d. You first have to persuade yourself that the people who snatched the purse had these characteristics.
i. Then you have to persuade yourself that the Collins’ had these characteristics.
· If you are not sure of these last two, then your confidence in the probabilities figure will be seriously reduced.
e. The Major Problem: the prosecution did not count all of L.A., so they can not really tell us statistically what the probabilities are.
i. This is a different kind of statistics than usual:
· If the statistics were accurate, they may tell us the probability of such an event happening, but they can’t tell us about a one time event.
3. Lisa Line, Lavastone Tires:
a. Spoliation: Strong evidence.
b. Don’t try to weasel out too much regarding general statistics – you need to know as much as possible about the specific situation.
c. Two Lines of Inquiry:
i. What do we want to know about the study of 100 exploding tires?
· Who did the study?
* Were they experienced/qualified?
· Under whose auspices was the test conducted?
· When was the study done?
· How was the study conducted?
* What questions did they ask?
* Who did they ask?
ii. What do we want to know about how the other 100 explosions compares to this explosion?
· How does the generic experience in this tire shop compare to explosions in other tire shops?
· If explosions from defective tires causes a different kind of injury than explosions from installer error.
· What kind of equipment was she using, and what kind of equipment was being used in the other explosions?
· What was the time of day and of week of the other accidents?
* What about this explosion?
· Need to know more about her:
* Has she had tires explode before, how long has she been doing this, etc.?
· What about other people in the shop using that equipment?
* Does this shop have an unusually high incidence of tire explosion?
· Is this tire different than the ones in the study?
· The 100 tires in the study were known-of explosions – so many unknown explosions likely occurred, and they were likely the result of installer error.
d. The question we are getting at is, “Is there enough evidence for the judge to even allow a jury to decide the question?”
e. In this situation we have an identified defendant, as opposed to the bus case where we don’t know who the defendant is.
4. Teamsters (discriminatory intent):
a. Are the statistics alone sufficient evidence of intentional race discrimination?
b. We need to know more about this case.
i. We are not diffusing our focus among 100 other cases.
ii. We need to know about the pool of qualified applicants.
· What is the geographically relevant area?
* i.e., there are more minorities in Detroit than in North Dakota.
· What about the qualified pool?
* What are the qualifications for the job?
c. Title VII does not require an employer to achieve any kind of numerical point, but if there is a whiff of discrimination, they better be able to explain their practices.
5. Widow Reed:
a. There is no easy or satisfactory answer to this question.
b. We want to resolve this question like Summers v. Tice – we know a defendant has done something wrong, and we want them to carry the burden of proof.
6. Widow Reed’s Husband:
a. We have determined the wrong, now we have to determine remedies.
b. Pure Statistics: Mortality tables are used all the time.
7. The Point: Preponderance of the Evidence means 1,000 different things, including what you are unsure about in the context you are unsure of it.
a. More probable than not doesn’t begin to explain it.
b. How much uncertainty can you tolerate?
i. Did D’s wrongful act cause the injury?
8. Context matters: for example, when courts are not sure what happened, they take into account the fact that it is a widow suing a RR.
9. We very commonly do not know what happened, but once you cross the threshold (you are 50.1% convinced), you give total relief.
a. This is the way it is supposed to work.
i. But, it often happens that courts give partial relief.
· Judges and juries who are not totally confident do not give as much in damages as if they were totally sure.
10. Dominant Characteristic of Our System: People with claims often go away with less than full relief, because:
a. Many people do not make a claim.
b. Of lawsuits that are filed, considerably less than 4% ever get to trial.
i. Many trials go away by default (defense never answers).
ii. More go away because P just gives up.
· But, some of these “give-up” cases are really out-of-court settlements.
* There are no hard figure on these, but many more cases are settled out-of-court than go to trial.
11. Many people believe that out-of-court settlement is the fairest way of resolving the law suit.
a. We hope this is true, because the all-or-nothing approach of the system encourages settlement.
i. If you don’t approach a trial scared, you are crazy.
ii. The all-or-nothing (AoN) approach causes judges and juries to evaluate more carefully.
iii. With a split-the-difference (StD) the court is never right.
· With an AoN rule, the court is at least right occasionally.
iv. Also, with a StD rule, the total error is greater than with an AoN rule.
· 5 cases in which the court is 80% sure:
* In an StD case the court winds up 160% in error.
20% wrong for each of 4 correct cases (80%), plus 80% in the case in which it is wrong.
* In an AoN case the court is only 100% in error.
Court gives 100% in each case, and in the case in which it is wrong it is 100% in error.
12. Judge in coin-flip case was punished for “not doing his job.”
B. Juries Fact Input: (Texas Employer’s Ins. Assn., 45-49; 1089-1095; 1001-1006 (through ¶3); Davis, Supp. 15-17; Alderman, 35-38; 1006 ¶4 to 1008)
1. Workman’s Compensation: Designed at beginning of 20th Century as a liberal social reform.
a. Workers injured on the job used to lose in courts.
i. If you were injured by another worker, (fellow-servant doctrine) then the employer was not liable.
b. Questions:
i. Were you injured?
ii. Were you working when you were injured?
iii. How sever is your injury?
iv. Is your injury permanent or temporary?
2. Texas Employer’s Insurance Association v. Price:
a. Are jurors supposed to be empty vessels?
i. How much of their personal knowledge can they incorporate into their decision?
b. A juror using personal knowledge may be wrong, or his knowledge may be incomplete.
c. In history, jurors were supposed to know about the case and were to decide the issues based on their knowledge.
i. But, for the last 400 years courts want jurors to decide cases on the basis of evidence produced in court and by applying their own general knowledge to that evidence.
· But, what is general knowledge?
* If a juror has a bad back himself, does that constitute special knowledge?
* What if a juror knows someone who has a bad back?
d. The testimony that his back is permanently, totally injured is his own subjective testimony that his back hurts and that he has to wear a brace to work.
i. But, his own doctor testifies that the injury is only 20%, not total.
· Of course, the doctor has his own reasons for wanting to testify of this.
e. The award given is pretty low for a permanent, total disablement.
i. Maybe the jury believed him to be partially disabled, but found him “totally” disabled in order to give him a better reward.
f. The Juror’s Contribution:
i. Concerns not whether P will be able to work, but that P will not be able to get hired.
· So we need to ask, “In TX law, is P’s hire-ability a relative fact?”
ii. The juror’s contribution may change the merits of the case, may go too far, or more importantly, may be wrong.
· In the court room, unlike the jury room, there is opportunity for the other side to introduce evidence to counteract wrong evidence.
3. Evidence Rule 606b:
a. There is a deep, longstanding principle that courts are open to the public.
i. This is the default rule with courts.
ii. But, jury proceedings are not open to the public, because:
· Concerns about chilling the jury deliberations.
* We do not want the jurors to be harassed after the verdict.
· Administrative costs would be high.
* Satellite Litigation: litigating things that are not central to the suit.
i.e., whether the jury did their job.
¨ How do you find out about what the jury did? You’d have to ask all of them, and that might also chill deliberations.
b. The rule does not apply to things like one juror threatening another – it applies only to inquiry regarding the verdict.
c. 606(b): If juries unitedly decide to disobey the law, they cannot testify to that.
i. i.e., if the jury was drinking and taking drugs while deciding the verdict (this was a real case in the ‘80’s that went to S.C.), then jurors cannot testify of it unless there is wholly conclusive evidence of the jury’s incapacity.
d. Extraneous prejudicial information brought to jury’s attention improperly is improper and jurors can testify to it.
i. i.e., jurors go to accident sight unapproved, or juror goes to library and reads up about back injuries.
ii. Information specially sought out to decide a case may be more impressive to jurors, and is still subject to being wrong.
iii. So, while jurors can testify of improper evidence brought to them, does 606(b) allow them to testify as to how influential the evidence was?
e. It is common to instruct juries to decide the case solely on the evidence brought forth in court.
f. The jury may ask for clarification of judge’s instruction, or may ask that a testimony be read back to them.
i. The judge may repeat instructions or expound on them.
ii. Sometimes the judge may allow a testimony to be read back – but often a judge won’t allow it because o
So if P’s attorney requests instruction on manufacturer’s defect and there is enough evidence to support it, but the instruction is not given, and yet the jury still finds for P, the remedy is not ‘you get to keep your verdict.’
Instead, you get a new trial, and you have to hope that the new jury finds the same way as the original jury found.
7. If P didn’t follow 51 properly, then it matters what D did.
a. P cannot ask for a retrial.
b. If D properly preserved the opportunity for a directed verdict, then sufficiency of evidence will be measured according to the instructions.
i. In our case, then, if there is no evidence of negligence (though there may be evidence supporting Strict Liability (manufacturer’s defect)), then D wins as mater of law.
8. Some courts have held that if there are no requests filed, the court must nevertheless charge the jury on the broad fundamental rules of law applicable to the principle issues of fact in the case.
a. But, rule 51 says nothing like that.
i. Courts have been acting like it says that.
· Thus, the need for the amended rule.
9. Amended Rule 51(d)(2): The proposed new rule says that a court may consider a plain error in the instructions if the error affects a substantial right, even if it has not been preserved as required by rule 51.
10. The Progression of a Rule:
a. Advisory Committee (October 2003): They make the rules.
i. Comprised of judges, lawyers, and academics.
ii. They mull over the rule from Oct 2003–April 2004.
b. They recommend the rule to the Standing Committee.
i. Composed of the same kind of people (with mostly federal judges).
ii. They review it in June 2004
c. Then the rule is published in August 2004.
i. People evaluate, comment on the rule until February 2005.
d. Then it goes back to the Advisory Committee in Spring 2005.
e. Then back to the Standing Committee in June 2005.
f. Then to the Judicial Committee, September 2005.
i. 26 judges sit here.
ii. Presided over by Chief Justice.
g. Then it goes to the Supreme Court in Fall 2005.
h. Then it goes to Congress, 2006.
11. Harmless Error: if the offended party did not comply with the rule (request different instructions, object to instructions given), a new trial will not be ordered.
a. Difficult to determine if an error is harmless or not – it depends on the circumstance.
b. Alexander v. Kramer Bros. Freight Lines, Inc.: It is very difficult to determine who was negligent.
i. Comparative negligent is much more difficult to administer than contributory negligence.
ii. The judges instructions placing the burden of proof on D, when it should have been on P, was considered a harmless error.
iii. A Federal court has to follow state law.
· But the accident happened in PA, but was tried in NY.
* The court followed PA law, but should have followed NY law.
NY: when a lawsuit is brought in a state court, we use NY burden-of-proof rules.
12. Rule 51: sits between harmless error and plain error.
a. 1st Dimension: The adversary system is very party-sensitive.
i. The judge asks for instructions because no judge knows all the law, or any more than a small percentage of it.
ii. The parties have to prepare the trial.
iii. It’s not just the “adversary system” in an abstract terms.
· By putting them in charge of preparing the trial, the parties are in a much better situation to know the applicable rules/laws.
b. 2nd Dimension: The lesson of Alexander is that the purpose of rule 51 is to help the judge.
c. 3rd Dimension: If you hear a judge giving incorrect instructions, it may not be in your interest to try to correct those instructions.
i. If you are losing, you may hope to get a mistrial.
ii. You may think you are winning, but you never know – this is a kind of insurance policy.
d. The objective of a trial is to resolve disputes and get on with life.
i. The more you drag things out with retrials the longer it takes to achieve resolution.
13. Plain Error:
a. 4 Dimensions:
i. Obviousness: Because of the rarity of clear answers in the law, and because of the long, arduous process to find them, when an error is obvious, we should correct it.
· What is obvious depends on how the parties frame the issues.
· If an error is harmless, though obviously, plainly wrong, a new trial is not ordered.
ii. Importance of the error.
· Difficult to know if a mistake was important to the jury in reaching their verdict.
· O’Brien case: Jeep had a steering problem, and the guy tried to drive it home anyway, crashed, and got hurt.
* The burden should have been placed on P, was put on D, and P won.
* D didn’t object, but appellate court says that this was too fundamental an error and ordered a new trial.
