Civil Procedure Flowchart

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| / * Has the defendant filed ANYTHING in response to the complaint after they were served

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| / | **Box 3**Can the defendant deny ALL allegations including the jurisdictional

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| / * Do either party have any amendments to make

**Rule 15 (c)(1) Relation Back DoctrineIF** the amendment sets out claims that arise out of the conduct, transaction, or occurrences set out in the original complaint **YESIF NOT, NO** | |

| / * Do any of the parties need to be sanctioned by the court

* **YES IF

** Motion to dismiss for failure to state a claim upon which relief can be granted has been granted

* **YES IF

** Any motion to dismiss under 12 (b) has been granted

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| / * Does the court need to sanction any of the parties

* **YES IF

** The plaintiffs suit has been involuntarily dismissed if there has been a failure to prosecute or a lack of process

**Rule 41 (b)** * **YES IF

** Summary judgment has been granted by the court

* **EVEN IF YES,** Court can modify pretrial final order ONLY to prevent manifest injustice

- / **** * Should the court grant judgment as a matter of law

**Rule 50 (a)** and **Rule 50 (b)** * **POSSIBLE YES 1

** Should the court grant **Rule 50 (a)** JMOL

* **IF NO,** SEE BELOW * **POSSIBLE YES 2

** Should the court grant **Rule 50 (b)** JMOL

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/ **** * Was this a jury trial granted by the 7th Amendment

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| / * **IF YES**, Should the court grant the plaintiff provisional equitable remedies

**IF NO,** in most cases, parties cannot have an appeal by right in the SCOTUS | |

| / * **IF YES,** does the appellate court have the jurisdiction to grant appeal

**IF YES,** the party can appeal **IF NO,** the party cannot appealUNLESS these exceptions apply

Can the party request a mandamus order from the appellate court?Has the trial court judge certified that an interlocutory order involves a controlling question of law in which there is substantial ground for difference of opinion so that judgment from the appellate court is necessary to make the correct final judgment?AND has the appellate court agreed to the interlocutory order?Does the collateral doctrine exception apply?Can the appellate order conclusively determine the disputed question?Can the appellate order resolve an important issue completely separate from the merits of the action?Is the disputed question effectively unreviewable on appeal from a final judgment

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| / * **IF YES**, should the appellate court reverse the trial courts error

Pleading Stage Flowchart

Has the plaintiff filed a complaint sufficient to show that they succeed in stating a claim upon which relief can be granted?
- IF YES The suit will go forward because the court will deny the defendant's motion to dismiss under Rule 12 (b)(6)
- IF NOT The defendant can file a motion to dismiss under Rule 12(b)(6) and the court will grant the motion
Has the defendant filed ANYTHING in response to the complaint after they were served?
- IF NOT Default judgment: Rule 55 (a) and (b)
-- BUT You can file a motion to easily set aside entry of default.
-- Rule 60 also allows you to set aside default judgments, but it will be more sparingly granted.
- IF YES Does the defendant have any motions to file before the answer?
-- IF YES Rule 12 motions [Rule 12 (e), (f) and RULE 12 (b)]
-- IF NOT Answer
Do either party have any amendments to make? Rule 15
Do any of the parties need to be sanctioned by the court?

- YES IF: The defendant has failed to make any kind of response. Then, the court will make a default judgment in favor of the plaintiff.
- YES IF: Motion to dismiss for failure to state a claim upon which relief can be granted has been granted.
- YES IF: Any motion to dismiss under 12 (b) has been granted.
- OR YES IF: as in any stage of litigation, the parties have settled

Pleading: Has the plaintiff filed a complaint sufficient to show that they succeed in stating a claim upon which relief can be granted?

- Does the complaint have all needed components of a complaint?
- Does the complaint meet the Twiqbal standard?
- Are there non-conclusory allegations as well as conclusory allegations?
- Do the non-conclusory allegations appear ‘plausible’ in light of judicial experience and common sense’?
- Is this a pleading of special matters (either fraud or mistake) in which the plaintiff must state with particularity the circumstances constituting fraud or mistake? Rule 9 (b)

Pleading: Does the defendant have any Rule 12 motions [Rule 12 (e), (f) and RULE 12 (b)] to raise?

Does the defendant have any (special_my language) motions to raise?
- Rule 12 (e)
- Rule 12 (f)
Can the defendant raise any 12 (b) motions to dismiss? (Rule 12 (g), (h))
- Will the defendant raise any of the 12 (b)(2)-(5) motion?
-- IF YES They must be put in your first 12 (b) motion/answer (SEE BELOW)
--- IF NOT The right to raise them is waived.
- Will the defendant raise 12(b)(6) OR 12 (b)(7) motion?
-- IF YES The defendant can raise either of the motions for the first time any time before the end of the trial stage.
- Will the defendant raise 12(b)(1) motion?
-- IF YES The defendant can raise the motion ANY TIME, even after the appeals process has started.

Pleading: How can the defendant file an answer?

Can the defendant deny ALL allegations including the jurisdictional?
- IF YES General Denial
- IF NOT Specific Denial (Denial, Admit, Not enough information)
Does the defendant have any affirmative defense to raise? (Rule 8(c))
- IF NOT just move on
- IF YES, Defendant has to put ALL denials and affirmative defense in the answer.
-- IF NOT, they are waiving the right to raise the defenses (Rule 12 (b) motions can also be raised as affirmative defenses in your answer if you have not raised them as motions before.)

Pleading: Do either parties have any amendments to make? Rule 15

Is this the first time that the party is amending its pleadings? Rule 15 (a)
- IF YES Amendment by right possible
- IF NOT The party may amend its pleading only with the opposing party’s consent or the court’s leave. The court should freely give leave when justice so requires.
IF the amended complaint would be filed after the end of statute of limitation, would the complaint be able to relate back to the date of the original pleading? Rule 15 (c)(1) Relation Back Doctrine
- IF the amendment sets out claims that arise out of the conduct, transaction, or occurrences set out in the original complaint YES
- IF NOT, NO

Pleading: Do any of the parties need to be sanctioned by the court? Rule 11

Has the parties’ attorneys filed documents after inquiry reasonable under the circumstances? Rule 11(b)
- IF NOT, no sanctions
-- Rule 11 permits sanctions for ‘pleadings, written motions and other papers’ signed by the attorney. Does not authorize sanctions for the conduct of the attorney.
-- BUT The court may hold misconduct done in/or out of the presence of the judge that still rise to outrageous levels in contempt Inherent contempt power of the court
- IF YES, has the opposing party informed the other party of its mistake? And has the 21 day grace period passed without the other party not having solved the mistake? Rule 11(c)(2)
-- IF YES, the opposing party will file a motion for sanctions to the court. And the court can award sanctions.

Discovery Stage Flowchart

Is a piece of evidence discoverable?
Does the court need to sanction any of the parties? (Spoliation)
- Did the party violate obligations regarding ordinary materials?
-- If a party reasonably anticipates litigation (even before complaint filed), attorneys have an obligation to put relevant documents on ‘litigation hold’
- Did the party violate obligations regarding ESI?
-- Rule 37 (e) Still requires parties to preserve relevant ESI but will only give out the most serious sanction ONLY for intentional destruction of documents.

- YES IF: The plaintiff’s suit has been voluntarily dismissed. Rule 41 (a)
-- Has the defendant not answered yet? Plaintiff can dismiss on its own volition.
-- Has the defendant already answered? The plaintiff can dismiss a suit at any time if all parties agree.
--- Usually happens if the two parties reach a settlement agreement.
--- Such dismissals do not bar a later refiling unless there has been a previous dismissal or the dismissal itself contains a provision that bars refiling.
- YES IF: The plaintiff’s suit has been involuntarily dismissed if there has been a failure to prosecute or a lack of process. Rule 41 (b)
- YES IF: Summary judgment has been granted by the court. Rule 56

Discovery: Is a piece of evidence discoverable?

Is the evidence relevant? Rule 26 (b)(1)
Even if relevant, is the burden of producing the information proportional to the relevance of the evidence to the case? Rule 26 (b)(1)
Does attorney-client privilege prevent the evidence from being discoverable?
- Are the elements of A-C privilege satisfied?
-- The communication has to be between attorney and their client
--- May also include agents of the attorney/client
--- May also include necessary third parties (EX-translators)
-- The communication has to be for the purpose of seeking legal advice
-- If a client was mistaken, in good faith, that the person they were communicating with as an attorney, was not an attorney, A-C privilege to the communications would still apply
Can the work product doctrine protect the evidence from being discoverable? Rule 26 (b)(3)
- Is a good enough reason given? Rule 26(b)(3)(A)
-- IF YES, the protection may be removed if substantial need for the materials given. (EX-when there is no other way to get the information which is factually necessary to the case)
-- IF NOT, the protection is not removed and work products are not discoverable
- Are the materials requested record not of facts, but lawyers’ thoughts and impressions? Rule 26(b)(3)(B)
-- IF YES, the materials are absolutely protected and can never be discovered.
Are there experts involved in this case, and can their testimony be discoverable?
- Are there experts retained for expert testimony at trial?
-- IF YES, the opposing party can do wide-ranging discovery on their testimony
-- The experts also need to prepare a written report of their testimony
- Are there experts retained to be fact witnesses at trial?
-- IF YES, the opposing party can do wide-ranging discovery on their testimony
-- BUT the experts do not need to give written reports
- Are there expert witnesses that will not testify but advise litigators?
-- IF YES, Communications between attorney and advising expert witnesses are not discoverable Rule 26(b)(4)
-- Same rule as work product doctrine
--- Expert witnesses that do not testify may be discoverable IF information they have cannot be obtained by the opposing party by any other means.

Discovery: Should the court grant summary judgment?

Has the moving party shown that there is no genuine dispute of fact?
- IF YES, summary judgment will be granted
- IF NOT,
-- BUT after adequate discovery, the defendant can show that the plaintiff has no evidence to demonstrate their case, the defendant is STILL entitled to summary judgment
-- IF NOT, summary judgment will not be granted.
Are there some disputes in fact?
- IF YES, inferences must be made in light most favorable to the non-moving party
-- Summary judgment will be granted if despite inferences in favor to the non-moving party, the judge decides no reasonable jury will be able to decide in favor of the non-moving party
Is there a higher burden of proof at trial for this specific cause action?
- IF YES, the higher standard of evidence will also apply in granting/denying summary judgment motion

Steps Right Before the Trial Flowchart

Should the judge recuse themselves?
- Is there a reason for parties to request recusal by motion?
-- EX: Judge has represented a party (recently) when he was a practicing lawyer
-- EX: Judge or his family has a financial stake in the interest
-- EX: Broader grounds for disqualification: “judge’s impartiality may be questioned”
-- EVEN IF YES, Courts have broad discretion in interpreting this language
-- BUT does this case present extreme circumstance where recusal cannot be up to the judge’s discretion because perhaps denial of recusal motion would be an unconstitutional violation of due process clause in the 14th Amendment?
Is the case one that should be tried by a jury? 7th Amendment
- Is this a case looking to recover legal damages and NOT equitable remedies?
-- IF YES, have the parties demanded jury trial in their complaint/pleading?
--- IF NOT, they have waived the right to jury trial
-- IF NOT, the parties do not have a right to a jury trial
Has there been a final pretrial order?
- Has there been a request by any of the parties to modify pretrial final orders?
-- EVEN IF YES, Court can modify pretrial final order ONLY to prevent manifest injustice

Trial Stage Flowchart

Should the court grant judgment as a matter of law? Rule 50 (a) and Rule 50 (b)
- POSSIBLE YES 1: Should the court grant Rule 50 (a) JMOL?
-- Has either party raised a Rule 50 (a) motion either at the end of the plaintiff’s or the defendant's case?
--- IF YES,
---- IF THE DEFENDANT has raised the motion, can it demonstrate that the plaintiff does not present enough evidence to prove its prima facie case?
---- IF THE PLAINTIFF has raised the motion, can it demonstrate the defendant has not presented enough evidence to disprove plaintiff’s case?
--- IF NO, SEE BELOW
- POSSIBLE YES 2: Should the court grant Rule 50 (b) JMOL?
-- Has the party previously raised a Rule 50 (a) JMOL?
--- IF YES, the same standard as the Rule 50 (a) JMOL
--- IF NO, the party CANNOT raise a Rule 50 (b) JMOL.
-- IF NO, the jury will deliver a verdict in favor of either party. SEE BELOW
Has the losing party raised a Rule 59 motion for a new trial?
- Should the court grant a motion for a new trial?
-- Has the party previously raised a Rule 50 (a) motion?
--- IF YES, the party can raise a Rule 59 motion for a new trial along with JMOL under Rule 50 (b)
---- IF YES, the court must rule on both of the motions. Rule 50 (c)
----- The judgment of the motion for a new trial will come into effect if the appellate court vacates the trial court’s grant of motion 50 (b).
-- [Rule 59 motion will be granted for reasons that the motion has been historically granted.]
--- Has there been a flawed procedure OR a jury verdict contrary to the weight of the evidence?
---- IF YES, a Rule 59 motion may be granted.
---- IF NOT, the losing party may appeal. SEE BELOW.

Remedies Flowchart

Was this a jury trial granted by the 7th Amendment? [Or was it a bench trial?]
- IF YES, Should the jury grant damages to the plaintiff?
-- Has the plaintiff won the case?
--- IF YES, has the plaintiff asked for appropriate damages in their complaint?
---- IF YES, Compensatory damages should be granted to make the plaintiff whole.
----- Are there hard damages to be granted?
----- Are there soft damages to be granted?
----- Are there statutory damages to be granted?
----- In cases of contract suits, have the parties decided, in advance, what the damages would be, in case of breach, with a liquidated damages clause?
----- IF YES, should punitive damages also be granted?
------ Possibly, is this a case in which liabilities are very serious? (Maybe some even have a criminal law counterpart?)
------ Possibly, would the jury/judge like to deter similar liabilities?
------ Is this a case regarding antitrust or RICO laws?
------- IF YES, the court may want to also grant treble damages
- IF NO, then should the judge grant equitable remedies to the plaintiff?
-- IF YES, Should the court either grant permanent injunction/declaratory relief to the plaintiff?
-- IF YES, Should the court grant the plaintiff provisional equitable remedies?

Remedies: Should the court either grant permanent injunction/declaratory relief to the plaintiff?

Has the case ended?
- IF YES, has the plaintiff won the case?
-- IF YES, Should the judge grant permanent injunction/declaratory relief to the plaintiff?
--- Has the plaintiff asked for permanent injunction/declaratory relief in their complaint?
---- IF YES, in this case, are legal remedies inadequate so that permanent injunction/declaratory relief is the only just remedy that the court can grant to the plaintiff?
---- OR are there public interest reasons relevant to the case that make injunctive relief/declaratory relief adequate in this case?
----- IF YES, permanent injunction/declaratory relief may be granted to the plaintiff.

Remedies: Should the court grant the plaintiff provisional equitable remedies?

Has the case not yet ended?
- IF YES, has the plaintiff filed a motion for preliminary injunction?
-- IF YES, is this a case in which a judge may just make the preliminary injunction trial into a trial for the final judgment under Rule 65 (a)(2)?
--- IF YES, no provisional equitable remedies will be necessary.
--- IF NO, can the plaintiff satisfy the four factors that determine whether the preliminary injunction should be granted in favor of the plaintiff? (Winter)
---- Is he likely to succeed on the merits
--- AND is he likely to suffer irreparable harm in the absence of preliminary relief?
---- AND Does the balance of equities tip in his favor?
---- AND Is an injunction in the public interest?
----- IF YES to ALL FOUR ELEMENTS, preliminary injunction may be granted
--- IF NO, has the plaintiff filed a motion for temporary restraining order?
--- Is there a situation where notice is neither practicable nor advisable?
---- IF YES, can due process be given by any other measure?
----- IF YES, TRO will be granted.
----- IF NO, TRO cannot be granted because it would be unconstitutional.

Appeals Stage Flowchart

Can the losing party make an appeal to a higher court?
- Is the party in the correct court, appealing to the right higher court?
-- IF YES, does the appellate court have the jurisdiction to grant appeal?
--- IF YES, should the appellate court reverse the trial court’s error?
---- Does the error concern a question of law?
----- IF YES, the appellate court can apply the de novo review standard
---- Does the error concern a question of fact?
----- IF YES, The appellate court needs to grant more deference to the trial courts’ decision
----- Has the trial court abused its discretion?
------ ONLY IF YES, the appellate court can reverse an error concerning a question of fact.

Appeals Stage: Is the party in the correct court, appealing to the right higher court?

Is the party appealing from the trial court?
- IF YES, the party should appeal to the intermediate court
Is the party appealing from the 3-judge panel judgment in the intermediate court?
- IF YES, the party can make a motion for an en banc review
- OR the party can appeal to the Supreme Court of the United States
Has the Supreme Court granted certiorari?
- IF NO, in most cases, parties cannot have an appeal by right in the SCOTUS

Appeals Stage: Does the appellate court have the jurisdiction to grant appeal?

1: Is the trial court’s error sufficiently grave?
2: Has the appealing party pointed out the error and preserved the issue for appeal at the trial court level?
- Has the party raised a motion objecting?
- AND has the party ALSO raised objections at the time the thing they were objecting to happened to make a specific objection to preserve the specific issue for appeal?
-- ONLY IF YES to BOTH, can the losing party raise an appeal.
- OR Has there been an exception that allows appeal for issues that were not preserved for appeal at the trial level?
-- Has there been a fundamental change in the law?
-- Does the plain error doctrine apply in this case?
3: Is it likely that the error in question would have changed the outcome of the case or the remedy that the party got?
OR Is the case not moot?
- Even if moot, is this a case that may be capable of repetition, yet evading review?
4: Has a final judgment been given in this case?
- IF YES, the party can appeal
- IF NO, the party cannot appeal
- UNLESS these exceptions apply:
-- Can the party request a mandamus order from the appellate court?
-- Has the trial court judge certified that an interlocutory order involves a controlling question of law in which there is substantial ground for difference of opinion so that judgment from the appellate court is necessary to make the correct final judgment?
--- AND has the appellate court agreed to the interlocutory order?
-- Does the collateral doctrine exception apply?
--- Can the appellate order conclusively determine the disputed question?
--- Can the appellate order resolve an important issue completely separate from the merits of the action?
--- Is the disputed question effectively unreviewable on appeal from a final judgment?
ONLY IF YES to ALL FOUR ELEMENTS, appeal may be granted.