Civil Procedure I

Week of 11-17-08

17 October

Note that in the settlement discussion, it does not matter who is right. It just matters that we want settlement. Be wily, show respect. Stick to your guns on the settlment amount, not on the points of the case.
Plot out moves in advance, use reasons for moving.
Now, back on the trial exercise. Jury instructions are on the course web page now. See chapter 7 (1983 claims) See 7.09
Plaintiffs tend to prefer general verdicts ("we find for the plaintiff"), but special verdict forms can make it way more complicated, and push the decision in an confusing or alternate direction. Defendants like special jury forms, because it gives the jury a number of ways to find in their favor. It also gives more grounds for appeal, if the finding isn't in their favor. It's a way to structure the jury's thinking and examine it after the fact.
Direct and cross examination. During direct examination, you try to fade out of focus: stand off to the side, don't distract from the witness.
Cross examination is harder, because you're trying to argue with the witness, and they won't go along. You want to get them to drop enough things so that you can weave them together in closing argument. Prepping for cross-- have the evidence that supplies the answer to each question at your fingertips, so that you can whip them out if needed. Plan what objections there might be. A witness takes a credibility hit when they stand up at trial and contradict their own prior statements-- no point worrying about whether they contradict other peoples' statements.
Post-trial motions. These are like an appeal, but to the trial judge. You're appealing the decision of the fact-finder. Rule 50: judgment notwithstanding the verdict-- the JMOL standard.
We want to establish that there was a struggle, that Raheem was a threat. Riot.

19 October

Grade sheets for senior partners come on Thursday
Settlement negotiations were today
Orals will be in a team of two. 12/4 or 12/5.
Settlements are not wins. B+ is about as good as it gets. sometimes, though, there might be win-win situations; money-only settlements are a zero-sum game, typically.
Note that you don't have to settle when your authority is reached. If the plaintiff is a one-shot litigant, and the defendant is a sophisticated repeat player (as would be the case in Jackson v. Long), for example. Sometimes there might be mediation, if the parties really want to pursue settlement, and expect a lot of posturing from one another. A mediator can break a log jam by knowing what each side can offer/accept.
"I'll take that to my client, but I won't recommend that they accept it." Keeps you out of ethical troubles, as opposed to "I can't take that to my client, that's an insult."
Lots of times there's very little movement at first, and giant strides right at the end.

7:00PM 505 Virginia Ter (W on Regent, turn L past West)
Summary Judgment practice. (Marquette joke). Offer to recite the facts.
Refer to Jackson by his last name. Make him seem like an adult.
Have an opening and a closing prepared.
Ask if the court wants a recitation of the facts. When you begin, state the theme. Have a 30-sec introduction, then a 90-sec introduction.
Have affidavits handy, also cases. And a cheat-sheet. You may need to refer the court to the record.
Look at Garner, Appendix A. Also the section on p. 135.
For sentences, check to make sure that all verbs are active.
Four lines is too long for a sentence. 3 is pushing it.