conferences, trials, judgment, and post-trial motions

Rule 26(f) conference

at least 21 days before the court’s scheduling order, parties meet and confer to discuss

• production of required initial disclosures

• claims

• defenses

• settlement

• preservation of discoverable information

must present a detailed discovery plan no later than 14 days after the conference

• views and proposals on timing

• issues about discovery of ESI, including how it will be produced and any problems retrieving it

scheduling order

roadmap for how the litigation proceeds up to trial

• cut-offs for joinder, amendment, motions, completion of discovery, etc.

pretrial conferences

final pretrial conference determines the issues to be tried and evidence to be proffered at trial

• recorded in pretrial conference order, which supersedes the pleadings

jury trials generally

types of trials/hearings

• jury trial — determines the facts and returns a verdict

• bench trial — judge determines the facts with no jury

• motion in limine — pretrial motion outside presence of jury to decide whether the jury should hear certain evidence

right to jury trial

• Seventh Amendment — right to jury in civil actions (not in equity)

  • does not apply to state court

• mixed suits of law and equity

  • facts underlying damage claim — tried to jury first

  • facts relating wholly to equity claim — tried to judge

  • fact underlies both claims — jury will decide that fact

• party must demand jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue (usually the answer)

selection and composition of jury

for cause challenges

• juror may be challenged for cause, such as being impartial

• unlimited

peremptory challenges

• juror challenged for no reason, but may be used only in race- and gender-netural manner

• limited to 3

number of jurors

• minimum of 6, maximum of 12

• all jurors must participate unless excused for good cause

• verdict must be unanimous unless parties otherwise agree

jury instructions

• jury decides facts on instruction by the judge

• parties submit proposed instructions at the close of all evidence

• judge may hold off the record conferences with parties about instructions

before final argument and instruction, and on the record, court informs parties:

• what instructions it will give AND

• what proposed jury instructions it rejected

parties must be allowed to object on the record and out of the jury’s hearing, even if during off-record conference

• if objection not made before jury is charged (given instructions) — objection waived

  • can be revisited only for clear error affecting a party’s rights

forms of verdicts

determined by judge

general verdict

• says who wins and, if plaintiff, what the relief is

special verdict

• jury answer, in writing, specific written questions about the facts in dispute

• does not say who wins or loses

general verdict with written questions

• jury not only gives a general verdict, but also answers specific questions

entry of judgment

if general verdict — clerk of court enters the judgment

if special verdict (or gen. w/ written questions) AND answers consistent with each other and with verdict — judge approves and clerk enters it

if general verdict with written questions AND answers consistent with each other but inconsistent with verdict — court may enter appropriate judgment consistent with answers

• or can tell jury to reconsider or order new trial

if general verdict with written questions AND answers inconsistent with each other and one or more is inconsistent with verdict — no judgment may be entered

• or can tell jury to reconsider or order new trial

juror misconduct

• verdict may be impeached upon external matters (juror bribed or verdict based on their investigation made outside of court)

  • new trial can be ordered

• BUT verdict will not be set aside if misconduct was harmless

bench trial

• judge must record her findings of fact orally on the record or in writing along with her conclusions of law

• judgment also must be entered

motion for judgment as a matter of law (JMOL)

• applies in jury trial

• if granted, case will not go to jury

• standard

  • reasonable people could not disagree on the result

  • evidence viewed in light most favorable to nonmoving party

• timing

  • can move any time before case is submitted to the jury BUT

  • may not be granted until party opposing the motion has been heard at trial on the issue

renewed motion for judgment as a matter of law (RJMOL)

• comes up after trial

• prerequisites

  • party must have moved for JMOL at the proper time at trial — otherwise is waived

  • RMJOL motion must be based upon the same grounds as the JMOL motion

• if granted — enters judgment for the party that lost the jury verdict

  • considered in light most favorable to nonmoving party

• timing

  • must be made within 28 days after entry of judgment

motion for new trial

• can be granted on an non-harmless error that makes the judge think there should b ea do-over

• moving party must make motion within 28 days of judgment

• some reasons for new trial

  • erroneous jury instruction

  • new evidence discovered that could not have been discovered before with due diligence

  • misconduct was committed by a juror, party, or lawyer

  • judgment is against weight of the evidence (serious error of judgment)

  • damages are inadequate or excessive (standard is whether the figure “shocks the conscience”)

remittitur (for plaintiff)

• playing hardball with the plaintiff on damages

• court offers plaintiff the choice to remit part of damages award OR go through a new trial

additur (for defendant)

• playing hardball with defendant

• court offers defendant the choice to add to the damage award OR go through a new trial

NOT ALLOWED IN FEDERAL COURT

offer of judgment

defendant can submit formal offers to settle the case up to 14 days before trial

• contains cost-shifting provisions that apply when plaintiff rejects offer to settle but doesn’t do as well at trial

motion for relief form order or judgment (to set aside judgment)

• clerical error

  • any time

• mistake, excusable neglect (including viable defense)

  • reasonable time but never more than one year

• fraud, misrepresentation, or misconduct by opposing party

  • reasonable time but never more than one year

• newly discovered evidence that could not have been discovered with due diligence for a new trial motion (newly discovered facts must have existed at the time of trial)

  • reasonable time but never more than one year

• judgment is void (ex: no SMJ)

  • reasonable time with no maximum