Civil Procedure I

1 December

• Only about 5% of civil cases go to trial, but all these procedures are designed to make sure the trial works, and that the parties have the information they need. That's why some of the discovery issues turn up as evidence arguments.
• Also, it's not accidental that the same arguments crop up again and again-- 12(b)(6), summary judgment, post-trial might all deal with some of the same topics.
• Think of newspaper writing: put the most important thing as close to the front as you can.
• Attention points: some elements get more emphasis than others. Argumentative headings, for example.
• A strong persuasive introduction is required. Do not skimp. The "two because" rule: go two layers deep. That's one way that you know you've got enough detail.
• See also the sample MSJ brief in the materials. There's this "summary of argument" section. We don't do this, but it's an example of a decent level of detail.
• Topic sentences again. See the handout. Eliminate issue statements as topic sentences.
• The summary judgment standard should infuse the brief: season the brief with the language of the standard. Defendants need to show that no reasonable jury could find... that there is no dispute... etc. Make sure you include the standard itself somewhere, also.
• A clause has a subject and a verb. A legal rule always requires a clause. If you want to say a rule, just say it. Don't just say, "in $CASE, the court held that..." At least, don't do it when introducing a new legal rule.
• Facts example: "RJ resisted the officers. It took three of them to pull him off of Sal, he struggled to break free, he shouted at them." This is how to be persuasive in facts.
• If an opposing argument is so obvious that the opponent can't overlook it, it's best to deal with it. "Raheem was armed" is a simple rebuttal to the theory that he wasn't. The idea of "framing:" place a bad fact in a dependent clause, and state the counter-argument.
• Oral arguments: 15-30 sec intro; 90 sec summary. This is the only part where we have control.
• Introduction: 15-30 seconds-- say why we win. Don't bother with formalities (Sum J standard, etc.). Just say why the facts make you win.
• Summary: 90 seconds-- present basically the headings of the brief: the major points in 1-2 sentences of explanation each.
• First person should introduce the whole argument, second person should introduce and summarize their argument.
• Use pauses to let the listener absorb materials. Strive to converse. Use inflection. Don't move your feet. Set yourself before beginning. Stand behind the podium, but pretend it's not there-- don't lean on it or grab it. Don't make it a screen between you and the judge.

3 December

• Appeals: this is the background for pretty much the rest of all of our courses.
• Institutional factors drive the structire: workload, division of functions, etc. The interests and attention of appellate judges, as well: trivial appeals may be denied.
• Appellate courts will not consider facts outside "the record:" pleadings, briefs, papers filed, transcripts, exhibits. This means that it is important to put every last significant thing on the record-- otherwise you can't ever make an argument based on it. You can only introduce new evidence in a trial court (e.g., DNA evidence to exculpate someone).
• FRAP: Federal rules of appellate procedure. FRAP 3(a): you need to file a notice of appeal in the district court within 30 days after judgment or order. There are also rules on brief-writing formalities, etc. There are also Supreme Court rules, and Circuit rules.
• The Final Judgment rules (one of the three big rules). Final judgment "Ends the litigation on the merits and leaves nothing for the court to do bue execute the judgment." Catlin v. U.S.. 28 USC 1281: courts of appeals have jurisdiction of all final decisions. This means that as a rule, you have to have a final decision before you can appeal.
• Appeal of right: you have the right to one appeal, and the court of appeals has to hear it.
• So if a motion to dismiss or for summary judgment is denied, there's no appealing that until there has been a final judgment. If it is granted then there has been a final judgment, and you can appeal.
• So the facts, in an appeal after 12(b)(6) dismissal, come from the complaint. Note also, that if the complaint is dismissed without prejudice or with leave to amend, there has not been a final judgment, because the plaintiff can still re-file or amend.
• If some causes of action in a complaint are dismissed, but one remains, you can make this a final judgment by voluntarily dismissing the remaining one. Also, in multi-party cases, sometimes you have final judgment with respect to one party.
• Interlocutory appeal (an appear from a decision that is not a final judgment). There are a couple of these exceptions under 28 USC 1292: grant/denial of a preliminary injunction, controlling questions of law certified by district court.
• Collateral order doctrine. Another rare exception: decisions affecting rights separable from claims in the case, but too important to be denied review.
• Extraordinary appeals (e.g., writ of mandamus). This is very rare.
• Standards of appellate review. How closely will the court look at your case.
  • Non-deferential: de novo/independent/plenary. Questions of law are reviewed in this way. The appellate court is free to second-guess the trial court. Jury instructions, for example. 12(b)(6), MSJ, and JMOL rulings. Sometimes a "mixed question of fact and law" (the application of undisputed facts to a legal standard: reasonableness, for example).
  • Deferential: some weight given to what the trial court decided. We will only reverse the trial court if:
    • Abuse of discretion (e.g., procedural, evidence questions) Case management decisions (evidence handling, application of rules of procedure, judges' personal rules) are treated deferentially. Rulings on motions to compel, for example. Admission/exclusion of evidence.
    • Clear error: fact fnding. This is a very deferential standard-- the trial court won't be reversed unless what it did was clearly erroneous
  So these standards have implications for appeal strategy: you want to pick the issues to appeal based on what burden you're going to have to overcome. So are we attacking, for example, a question of law or of fact? A seeming factual question might be transformed into a legal one if the court issues judgment as a matter of law (e.g., as a matter of law, rings that size are always to be considered weapons). You can look at this functionally: if the decision was made by the jury, it's a fact question; by the judge is legal.
• Prejudicial error: the parties are entitled to fair proceedings, but not perfect/error-free proceedings. That's unrealistic. So lots of errors won't lead to reversal on appeal. An error has to be serious enough to affect substantial rights. Meaning it has to cast doubt on the outcome. Otherwise the error is harmless, and not grounds for appeal.
• So all appellate arguments ask first if the trial court erred (requires reference to the standard of review), and then was the error prejudicial (considering all of the factors that went into the decision). So you sort of want to argue that the case was a close call, maybe.
• Deferential standards, and the prejudicial error standard, tilt the appellate process in the direction of affirming the lower court. Also, the lower court may be affirmed on any basis in the record (e.g., the outcome was correct, even if the reasoning was wrong). About 66% of civil appeals are affirmed.
• Appellate rulings:
  • Affirm: uphold the lower court's ruling.
  • Reverse: re-decide the case contrary to the lower court.
  • Vacate: erase the lower court ruling and order the lower court to re-decide based on a new or corrected legal rule.
  • Remand: sent back for further proceedings. A decision on remand means the lower court's ruling following a remand from the higher court.
  • Mandate: No matter what, the trial court has to issue the final disposition in the case. Mandate (jurisdiction to deal with the case) returns to the lowest court for final disposition, to execute the appellate decision. This is sort of a formality/ministerial thing. But this is where cases actually end, even if the ending is sort of clerical.
• Grab the visual aids on motions for JMOL in civil cases
• All our rules governed one of four things:
  1. Claiming and defending: Rule 8, e.g.
  2. Dividing up fact-finding and law-ruling authority 12(b)(6), 56 summary judgment
  3. Gathering evidence: discovery rules
  4. Managing litigation: Rule 11, maybe Rule 37 (motions to compel), rules about filing and service
• Back with the papers. The summary judgment standard should infuse the papers. A summary of the summary judgment standard can be in a separate section prior to the argument. Get language from Reeves and Celotex. We will want to talk about the judge's function (i.e, resolve all reasonable inferences in favor of the non-moving party). This allows us to discuss how some inferences are non-reasonable. The judge should not resolve credibility issues: can't decide not to believe a plaintiff's affidavit, or weigh evidence.
• Qualified immunity... don't brief qualified immunity. It's a complex area, and we don't need to worry about it (officers not responsible to anticipate new developments in constitutional law). So a plaintiff has to show that the officers were violating clearly established law. And that's not the tangle we want to be in-- a lot of rehashing of excessive force.
• Headings: the rules about topic sentences apply here-- state a rule or make an argument. Actually, for us, just make an argument. Don't make them generic-- use some facts specific to the case.
• On oral arguments, listen carefully. It will give you opportunities that you can sieze. How do you do this? Be well-prepared enough that you can be extemporaneous. For example, listen to what questions the judges ask: the judges' questions are arguments for the opposing counsel put in the form of a question.
• Arguments shouldn't be generic-- the exception is arguing in front of SCOTUS, because that court makes law. At trial, persuade about this case-- no need to make a new rule. This is a facts case: a fact-intensive legal standard. So the goal is to tell the most compelling factual story: that's the excessive force case.
• In the 90-second, emphasize my issues, then say what partner will talk about. Make an argument in 1-2 sentences.
• The 30-second intro is fact-based persuasion.
• Don't put a whole lot of law in the 90-second intro.