................ALL RIGHTS RESERVED. PROFESSOR WM SLOMANSON
................................................
Final Exams: 2000-2013


Older exams/portions not appearing at bottom of this page will nevertheless print out from this web page.

.Spr 2003 ..Spr 2004 . Spr 2007. .Spr 2008. .Spr 2009 ..Spr 2010. .Spr 2011 . Spr 2012 .Spr 2013

CIVIL PROCEDURE II .......................................................................................PROF. SLOMANSON
FINAL EXAMINATION .....................................................................................SPRING 2002

TABLE OF CONTENTS ...................................................................................................1
Preliminary Directions ............................................................................................................1

FILE
Memorandum #1 from Senior Partner ....................................................................................2
Complaint .............................................................................................................................3
Verdict Form: EPA v. MCA .................................................................................................4
Memorandum #2 from Senior Partner ...................................................................................5
Memorandum #3 from Senior Partner ...................................................................................6
Trial Testimony of Frank Stonewall .......................................................................................7
Motion .................................................................................................................................8
Opposition to Motion ...........................................................................................................8

LIBRARY
Statute ..................................................................................................................................9
Rules ..................................................................................................................................10
Cases .................................................................................................................................11

 

Preliminary Directions. Do not use any future event–which has not yet occurred–to analyze an issue presented in any of my memos to you. For example, Memo #1 is dated December 1, 2001. Your answer should not refer to any document or event that occurs after December 1, 2001. You may, however, use information from any earlier event/memo. I have included a partial Library of materials. You should not limit your legal analysis to the enclosed Library. Nor will you necessarily use all of its contents. There are no waiver issues in this examination. The " * * * " characters merely indicate some unimportant omission.

Page 1 of 11

 

.....FILE

.....Memorandum #1 from Senior Partner
.................Travolta & Associates
...............2121 Main Drag, Suite #16
....................Boston, MA 00700

December 1, 2001
To: Potential Associate Newcomer
Fm: Oscar
Re: Pamela Plaintive v. MCA & Deftco

It is now 6:00 PM. I need your analysis 9:00 PM this evening. I know it's late, but I also know that you'll feel a real sense of accomplishment when it's done!

Our law firm represents Pamela Plaintive, a distraught mother whose five-year-old son died of leukemia in 2000 (there is no statute of limitations issue). Pamela lives in the town of Woburn, Massachusetts. We learned that young children from nearly a dozen other Woburn families have also died of leukemia in the last few years. Yesterday, I filed a law suit on our client's behalf. See File. We are representing her on a "contingent fee" basis. We cannot charge her an hourly rate, because she does not have the money to pay us any fees.

First, I first need to know whether we can expect a motion to dismiss our complaint for lack of subject matter jurisdiction over our Mass Corporation (MAC) claim and for lack of personal jurisdiction over Deftco. Also, do we have a right to jury for Pamela's claim against MAC? Finally, there was a prior verdict against MAC (see Library). Can we use that judgment in this suit?

Page 2 of 11

............................................................................Complaint

Pamela Plaintive.... )
.sole heir of her......... )
deceased son Luke... )
.............v. ................)
Mass Corporation .)
Deftco, Inc............ .)

................. United States District Court
...............for the District of Massachusetts
.........Civil Action, File Number 654321-SOB

............................COMPLAINT
...............(Environmental Wrongful Death)

....................................................Environmental Degradation Claim (MAC)
.....1. Pamela Plaintive is a widow who lives in Woburn, Massachusetts, where this claim arose. Mass Corporation (MAC) is a Massachusetts corporation, having its only place of business in the Boston area of Massachusetts.
.....2. Pamela seeks relief for MAC's violations of the National Environmental Degradation Protection Act (NEDPA) [see File], resulting in the death of her minor son Luke. He was a resident of Woburn, MA for his entire life (1995-2000). MAC's operation of a tannery, approximately a half-mile upstream from the central Woburn water supply, caused Luke's death from leukemia. Plaintiff thus seeks $50,000.00 for MAC's environmental degradation of Woburn's water supply.

..............................................................Wrongful Death Claim (Deftco)
.....3. Pamela Plaintive incorporates all charging allegations against MAC, as if fully set forth herein. She thus alleges a wrongful death claim against Deftco, Inc. Deftco is a Delaware corporation, with its principle place of business in New York, New York.
.....4. Deftco, Inc. is the corporate parent of MAC. Deftco, who recently purchased MAC, negligently supervised its corporate subsidiary (MAC). Deftco is directly responsible for all MAC activities in Massachusetts. Deftco's negligent failure to monitor the civil and criminal conduct of MAC thus renders Deftco liable for the wrongful death of Pamela's son Luke Plaintive.

WHEREFORE, Pamela Plaintive prays for a judgment of:
(a) $50,000.00 against defendant MAC under the NEDPA; and
(b) $500,000.00 in damages from Deftco, for the wrongful death of her son Luke.

Date: November 30, 2001....................................................... Signed: Oscar Travolta, State Bar # 00700
............................................................................................................John "Oscar" Travolta
............................................................................................................Attorney for Plaintiff

Page 3 of 11

 

........Verdict Form

CRIMINAL NO: 92-092092

CASE: People v. Mass Corp, Inc.

VERDICT: We the jury find the defendant tannery, Mass Corp, Inc., guilty as charged for dumping the toxic waste product Ratsaflatsapackalumer into the Woburn River from May 1989 through and including May 1992. * * *

JUDGMENT ENTERED: September 17, 1992
Superior Court for the City of Boston, Massachusetts

Page 4 of 11

 

...Memorandum #2 from Senior Partner
...................Travolta & Associates
...............2121 Main Drag, Suite #16
.....................Boston, MA 00700

February 2, 2002
To: Junior Associate Newcome
Fm: Oscar
Re: Pamela Plaintive v. MCA & Deftco

Thanks for your excellent work on my Memo #1. I now need you to help me with some additional matters. This is a "fast-track" case, so discovery will end soon and a trial date has already been selected.

First, both defendants have answered our Complaint. They have also provided their "core" discovery. It mentions some tannery employees, and a foreman at MAC who reports to someone in the Deftco office in New York. These tannery employees were supposedly present on all occasions during the tannery's waste disposal operations. I'd like you to go to the tannery so that we can determine its waste disposal procedures. Give me a brief discovery plan, so that we can decide what to do, now that the case is beyond the pleading stage. Base your proposal on the information that you now have available from my Memos, the Complaint, and your general knowledge of discovery. You do not have to include a list of specific questions to be asked.

Second, we have not obtained a medical expert yet. But I have just retained an expert, here in Boston, who is quite knowledgeable about waste disposal and environmental impact studies in the northwestern states. Her reputation makes her the best in the country. I just received a call from counsel for the defendants. They wanted to hire her, but we beat them to the punch. They are now demanding that we produce her for a deposition. I reminded them that there are environmental experts in their own back yard, in New York City. So I have two concerns: (a) can the defense depose our environmental expert; and (b) if a judge rules that the defendants lawyer can depose her, can we obtain appellate review of that decision prior to the judgment in this case?

Page 5 of 11

 

...Memorandum #3 from Senior Partner
...................Travolta & Associates
...............2121 Main Drag, Suite #16
.....................Boston, MA 00700

May 15, 2002
To: Potential Partner Newcome
Fm: Oscar
Re: Pamela Plaintive v. MCA & Deftco

You've done remarkable work on the Woburn environmental case. I would love to have you as my partner–if you would have me. But first things first.

We obtained a well-deserved judgment from the jury, only to have the trial judge grant the defendants' post-verdict motion for judgment (see File). I have expended all of the firm's financial resources on the Woburn case. So our future–oh yes, and the slice of the verdict we would give to our client–depends on whether we can successfully appeal the judge's order. I suspect that you are rather busy at the moment, so let me help:

The plaintiff's trial testimony can be summarized as follows:
• plaintiff: she (and her son) suffered immeasurably before and after Luke's death.
• Luke's treating doctor: he died from leukemia, specifically from exposure to Ratsaflatsapackalumer (RFP).
plaintiff's environmental expert: Woburn's water was contaminated by this waste product, which is typically ..found and produced during tannery operations. RFP should thus be disposed of at specially designated toxic ..facilities in Nevada.

During this phase of the case, there wasn't a dry eye in the court. When I rested, the defendants offered 2 million, but I just nodded my head "no." What a majestic moment!

The defense testimony was essentially as follows:
• corporate officers: they testified that Luke may have died from exposure to RFP, but that MAC was not a ..polluter.
• Frank Stonewall (Mass Corporation tannery foreman): see File.

I am meeting with the plaintiff, first thing in the morning. Don't tell me what I want to hear–tell me what I need to hear, so that I can properly advise our client about whether to appeal.

Page 6 of 11

 

....Trial Testimony

...Direct Examination of Frank Stonewall (Mass Corp. tannery foreman)
.................by R. Fenway Park, Attorney for the Defendants

* * *
Q: How long have you worked there?
.....A: Yes I have–for the last twenty-seven years.
Q: To the best of your knowledge, is the Woburn River–either up or downstream from your tannery–contaminated?
.....A: No.
* * *
Q: While Luke was alive, did you know of anyone who dumped Ratsaflatsapackalumer–that is,
RFP–into the Woburn River?
.....A: No.
By Mr. Park: No further questions, Your Honor.
By the Court: Mr Travolta, you may proceed with cross.

-------------------------------------------------------------------------------------------------------------

....Cross Examination of Frank Stonewall
by Oscar Travolta, Attorney for the Plaintiff

Q: Mr. Stonewall, I was a bit busy on the day I took the depositions of all the tannery employees. I'd like to pursue some additional matters with you today, so that we can get the rest of the story.
.....A: Ok.
Q: Has your tannery ever dumped RFP into the Woburn River?
By Mr. Park: Objection, Your Honor. This witness has already testified that, to his knowledge, the River was not contaminated.
By the Court: Overruled. Mr. Stonewall can clarify his testimony on cross-examination, based on his personal knowledge. Please answer the question, Mr. Stonewall.
.....A: Yes, I'm sorry to say that we did dump RFP into the Woburn River.
Q: And that River–does it flow downstream, toward the town of Woburn?
.....A: Yes–always has.
Q: So let's be certain here–when did you start to dump RFP into the river?
.....A: Started to do that in 1989. We didn't think it was a big deal, since it's a big river that flows very fast.
Q: Aha! Please speak up, Mr. Stonewall–I wouldn't want the jury to miss a word. So your tannery has been dumping RFP into the Woburn river for some dozen years now, five of which were during little Luke's entire but short-lived existence?
.....A: No, I didn't say that! Our tannery had to pay a fine because we dumped RFP into the river to avoid paying the toxic waste shipping fees. However, both our tannery and the Woburn River have been inspected by the Environmental Protection Agency every three months since 1992. From the first inspection until the present, some ten years now, neither the tannery grounds nor the river have had any trace of RFP.
By Mr. Travolta: Thank you, Mr. Stonewall. No further questions.

Page 7 of 11

 

 Pamela Plaintive... )
.sole heir of her......... )
deceased son Luke... )
.............v. .................)
Mass Corporation ..)
Deftco, Inc............. .)

 ................ United States District Court
...............for the District of Massachusetts
.........Civil Action, File Number 654321-SOB

......Defendants Renewed Motion for Judgment
...............................F.R.C.P. 50(b)

.....1. Comes now the defendants, who seek relief from this court pursuant to F.R.C.P. 50(b). The defendants incorporate all trial evidence into these moving papers, as though fully set forth herein.
.....2. The jury held for the plaintiff heir in the amount of $850,000.00. A perusal of the facts established at trial yields the conclusion that this jury should have held for the defendant. This motion is designed to ensure the just determination of every civil action. Judgments not based on the evidence have no place in our system of jurisprudence.

Date: May 1, 2002............................................................Signed: Robert Fenway Park, State Bar # 01
..................................................................................................,,,,,,,.. R. Fenway Park, III
.........................................................................................................Attorney for Defendants

 Pamela Plaintive... )
.sole heir of her......... )
deceased son Luke... )
.............v. .................)
Mass Corporation. .)
Deftco, Inc............ ..)

 ................ United States District Court
...............for the District of Massachusetts
.........Civil Action, File Number 654321-SOB

.........Plaintiff's Opposition to Defendants' ..............Renewed Motion for Judgment
..............................F.R.C.P. 50(b)

.....1. Comes now the plaintiff, Pamela Plaintive, who obtained a judgment from the jury in the amount of $850,000.00 based on the evidence at trial.
.....2. A perusal of the facts established at trial yields the inescapable conclusion that this jury properly held for the plaintiff. The trial judge should not grant the defense post-trial Motion for Judgment. Doing so would deprive the plaintiff mother of the lone remedy for her grief, which has been caused by the shocking conduct of these defendants at the Woburn tannery.

Date: May 11, 2002 .........................................................Signed: Oscar Travolta, State Bar # 00700
...............................................................................................................Attorney for Plaintiff

 Page 8 of 11

 

..LIBRARY

......Statute

National Environmental Degradation Protection Act
(hypothetical statute enacted November 15, 2001)

§1. The United States Environmental Protection Agency (EPA) is an agency of the federal government responsible for monitoring the impact of the environment on the nation's water supply. It is the sense of the Congress that the EPA is in dire need of private sources for assisting federal officials with identifying and prosecuting those polluters who fail to comply with obligations arising under the environmental laws of the United States.

§2. Any company violating this law shall be subject to a fine, not to exceed fifty thousand (50,000.00) dollars for each violation, and a term of imprisonment for any responsible person, not to exceed six months for each violation.

§3. From this day forth, private individuals who experience violations of §4 of this Act may pursue a private claim against any accountable polluter who conducts business operations across state lines and thereby pollutes the environment. Plaintiffs who thus act as private attorney generals may thereby seek an EPA determination of liability and monetary relief in the maximum amount of $50,000.00. The monetary award, which does not displace any other civil and/or criminal liability under the laws of the United States, shall be used by the EPA to cleanse the effected environment. Harmed individuals may thereby assist the national government to combat environmental degradation.

§4. * * *

Page 9 of 11

 

.....Rules

Federal Rules of Civil Procedure:
Rule 1 Scope of Rules
.....These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity *** . They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

Rule 54(b) Judgment Upon Multiple Claims or Involving Multiple Parties
.....When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

United States Judicial Code, Title 28:
Section 1292(b) Interlocutory decisions
.....When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. ***

Section 1651(a)
.....The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

........Page 10 of 11

 

.....Cases

.....People v. Homer Simpson
(Hypothetical case: 15th Cir., 1990)

G. Reaper, Judge:
.....
We commence our analysis with a few basic propositions which presumably apply in all state and federal courts. Civil judgments are predicated on the familiar "preponderance of the evidence" standard. Criminal cases employ the "beyond a reasonable doubt" standard for assessing the trial evidence.
...............................................................................* * *
.....After numerous episodes, Bart Simpson was still a minor child who was victim of his unusual family circumstances. His father, Homer, represented the best and the worst in all of us. * * *
.....Where a case involving the same set of facts is first resolved in the criminal courts, that judgment may estop a guilty defendant from relitigating the identical issue in an ensuing civil case based on the same facts. The reverse is not true, however. In this instance, Marj and Bart Simpson obtained temporary retraining orders and other relief against Homer in the related civil action which attracted national attention and was the first of these related cases to go to judgment. Issue resolutions in the prior civil case cannot be used in this subsequent criminal trial to establish any issue which reappears in this criminal proceeding. Homer may be a national icon, but the rules apply equally to all proceedings in our courts. Thus, the prosecutor may not use any related judicial determinations in Homer's subsequent criminal trial.
* * *

Cohen v. Beneficial
337 U.S. 541 (1949)

Mr. Justice JACKSON delivered the opinion of the Court.
.....The ultimate question here is whether a federal court, having jurisdiction of a stockholder's derivative action only because the parties are of diverse citizenship, must apply a statute of the forum state which makes the plaintiff, if unsuccessful, liable for all expenses, including attorney's fees, of the defense and requires security for their payment as a condition of prosecuting the action.

............................................................Appealability
* * * It is obvious that, if Congress had allowed appeals only from those final judgments which terminate an action, this order would not be appealable. * * *
.....This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. The Court has long given this provision of the statute this practical rather than a technical construction.

........Page 11 of 11

 

....... Prof's Issue Outline

CIVIL PROCEDURE II .....................................................................................PROF. SLOMANSON
FINAL EXAM: ISSUE...................................................................................... OUTLINE SPRING 2002

Subject Matter Jurisdiction MAC Claim
• Diversity rule • all MA • <75k • FQ rule • 50k ok (no min amt) • NEDPA §3 "from this day forth"
• NEDPA enacted 2001 • Luke's death 2000–@¶2 • §3 "across state lines"–MAC exclusively MA
• EPA determines (rather than court)

Personal Jurisdiction Deftco
• MC/PA/RA • non-res D (DE/NY) • Deftco parent "directly responsible MAC in MA"
• "recently purchased MAC" @4 • not tie Deftco to MA time coa (2000) • Ties time file (2001)

Right to Jury MAC Claim
• Basic fork (law v. equity) • P seeks $50k • NEDPA §3: $ goes to EPS to cleanse environment
• §3 also provides for on administrative adjudication for fact finding (Atlas Roofing)

Prior Jmt against MAC
• Verdict gist • RJ rule • different P (S1 = People)
• C/E rule • Simpson: Same Facts S1, crim ok S2 civil • verd = ‘92 & fresh dumping ‘95-‘00
• S2 issue = causation • dumped in river: yes • not id issue–S1 = 89-92 dumping

Plaintiff's Discovery Plan
• core/scope/devices • limited funds for discovery (Memo 1)
• Property insurance–core/determine existence of any property policy/other coverage
• Prod Docs/Entry–visit tannery premises • "waste disposal procedures" docs? (core?) • docs prior S1?
Interrogs–two D's background details (espec who knows what re disposal) • fast track/time short (30 days)
Depo–tannery employees • tannery foreman • defendant corps • NY boss to whom foreman reports
..................................................................................................• where (Teledine Ryan)–NY or MA?

Scope Problem re "Expert"
• designated "expert?" • Northwestern qualified? • cond WP rule • "best" country • beat punch not monopoly
• qualified NY consultants • other consultants in MA? • coprs not have hardship • share cost option

Pre-Jmt Appellate Review
• policy perspective
• C.O.–Cohen rule (Lib) • SCt stingy application • 1292(b) (Lib)–if joint discretion
• 1651(a) (Lib)–extraord/no other remedy
• nothing in memo facts = extraordinary • Fast track time concern: could cut either way

Renewed Motion for Judgment Grant
• no reas jury hold opposing party (Pamela) • reas infer favor Pam • problem = causation
P evid–Luke died fm exposure to RFP (treating dr.) • W's water "was" contaminated (P expert)
• MAC admittedly dumped into Woburn River (S1 jmt)
• conflicting accounts (eg, P expert v. Stonewall)
D evid–D's & expert P difficulty link Luke's death with Woburn tannery • MAC not a polluter
Frank Stonewall evid (File):
• Direct testimony–not believe contaminated • not know of anyone who ever contaminated
• Cross-examination–dumped RFP into Woburn River upstream fm Woburn
• for ten years, no trace per quarterly EPA testing • biased (different sense than P's expert, other wits)?
• Oscar not pursue (post-depo in-trial) revelation

 

 Best Student Answer

SMJ over MAC
Federal courts have SMJ over a suit in one of 2 manners. First, the suit revolves a Federal Question. Second, if the suit involves diversity, requiring an amount in controversy which exceeds $75K and no plaintiff, no defendant, same state.

Federal Question
Federal courts have SMJ if the suit arises from an alleged violation of a federal statute. Here, the Environmental Degradation claim arose the recently passed NEDPA.

Defendant
MAC can argue against application of this law as it was enacted 11/15/01 and was only effective "from this day forth." Because Pamela's sone died in 2000, it would not apply to his death.

Plaintiff
Pamela must show that on or after 11/1501 she experienced some violation of the Act. Her complaint alleges violations of the Act, including degradation of the water supply. Whether or not she can prove that later is not critical now. If the court accepts her allegation that degradation of Woburn's water supply is sufficient to justify a violation suffered by a private individual, she will have overcome the SMJ hurdle.

Conclusion
Given the looseness of scrutiny for evidence in the pleading stage, the court should have FQ SMJ and accept Pamela's argument.

Diversity
Diversity SMJ exists if the amount in controversy exceeds $75K and no defendant, no plaintiff, same state. Here, the combined amount in controversy is $550,000, 50,000 of which is due to suit against MAC. If court only considered MAC's suit, minimum amount is not met. If court allows aggravation of claims (not likely) minimum is satisfied. MAC is a corporation, thereby having 2 potential domiciles. One is the place of incorporation (MASS) the other is the principle place of business (MASS). Pamela lives in Mass as well. Domicile is determined by residence and intent. The facts indicate that she has lived there for some time (at least from 1995-2000, assuming Luke lived with Pamela). Also, there are no indications that she intended to live in any other state. Thus, it appears that Pam's domicile is also Mass.

Conclusion
Because Pamela and MAC are domiciled in the same state, SMJ is not satisfied by diversity.

Overall Conclusion
SMJ is satisfied by one of 2 methods. Assuming the court accepts Pamela's arguments discussed in FQ section above, SMJ will be given by FQ. One this is established, the other portion of her claim (wrongful death) can be heard as well.

IPJ OVER DEFTCO?
General jurisdiction exists when a party has sufficient ties to the forum (such as residence). Specific jurisdiction arises if a party has sufficient ties to a forum if an occurrence or event has occurred (such as a motor vehicle accident in a non-resident state). To examine IJP, look to see if a party had minimum contacts with a forum, reasonably anticipated being hauled into court there, or purposefully availed themselves use of that forum.

Plaintiff
Here, Deftco is the corporate parent of MAC and is directly responsible for all MAC activities in MASS. Thus, Deftco have sufficient contacts with MASS (peat, repeat, threepeat!) due to its strong tied with, and control over, MAC.

Defendant
Deftco may try to argue that it is a Delaware corporation that's PPB is NY. Deftco's best argument is that it only supervised MAC, and perhaps not even in MASS, but that MAC remained its own separate entity.

Conclusion

Deftco held over MAC (being directly responsible for all of MAC's MASS activities), they have sufficient ties to MASS for MAC related activities. Thus IPJ exists.

RIGHT TO JURY FOR CLAIM AGAINST MAC?
No right to jury (generally) exists if the suit is equitable in nature only. If case if purely legal, there is a right to jury. If case is both equitable and legal, or if there is simply a possibility of money changing hands, there is a right to jury for at least some of the issues.

Pro-Jury
The Government Degradation Protection Act, if violated, results in a payment by the defendant of $50,000. Because money is changing hands, a right or jury exists (perhaps because of possible imprisonment too?)

Anti-Jury
The money, if changing hands, only goes toward cleaning the environment and is not to be used freely by the plaintiff as in so many other cases. Also, the right to a jury arises under the 7th Amendment. That right only existed for violations existing at that time. The NEDPA was enacted in 2001, long after the 7th Amendment was written. Thus no automatic right to jury exists. Moreover, much like the facts in Markman, complex issues such as patents and large environmental damage cases are too difficult for a jury to understand and would be susceptible to inconsistent verdicts. [Also, an analogy might be made to the public interest in a clean environment, equating this trial to an administrative adjudication, but that would probably be stretching it.]

Conclusion

Although money changes hands, it is likely that the court would find this to fall within the "complexity" exception, removing the right to a jury trial. Notably, a patent infringement cases, such as Markman, money can also change hands. Thus, the rule is not dispositive.

Last Note
If Pamela wants a jury trial and the court allows it – she needs to request one soon or may waive the right away.

PROOR VERDICT AGA MAC
This prior verdict can be used against MAC if collateral estoppel applies: 1) identical issue, 2) actually litigated, and 3) necessarily decided. Also, to use this offensively, 1) plaintiff must not have had a reasonable opportunity to be in first suit, and 2) first suit gave defendant a full and fair trial.

Identical Issue
The issue is whether MAC dumped toxic waste (rgt ....) Into Woburn River.

Plaintiff will argue that People v. MASS Corp. decided conclusively that MAC dumped toxic waste into the river, which is one of the issues she is claiming. Thus, she will wish to use CE on that issue. Also, People v. Simpson explains that because burden of proof is higher in criminal than civil cases, CE can apply to use a negative result from a criminal case against the defendant in a subsequent civil suit.

Defendant will argue that issue is not identical, because criminal case involved 1989-1992 and Luke was only alive 1995-2000. Thus no overlap existed between alleged dumping.

Actually Litigated
Appears straight forward. Prior case involved dumping from 1989-1992 by MASS Corp. This case was litigated and a verdict was reached. Also, because the case involved the dumping from 1989-1992, that issue was necessarily decided. However, dumping from 1992 onward was not (and could not have been in 1992) decided.

Conclusion

Collateral estoppel could only be used to show a history of dumping, but not during the period of Luke's life.

Can Plaintiff use CE offensively
Plaintiff (Pam) not had a chance to be in original suit?

Pamela had not sustained any known injuries in 1992, thus would not have been a reasonable party in the prior suit.

Defendant had a full and fair trial?

Trial results only were given. No evidence exists to show that trial was anything less than full and fair for the defendant.

Conclusion

Pam could use CG offensively.

Overall Conclusion

Pam can use CE offensively, but only to the point of showing that MAC had some history of dumping. She cannot extrapolate the findings past 1992.

BRIEF DISC PLAN
First, provide the necessary disclosures which we must give under "core discover." This would include: our computation of damages, relevant documents (those relating to our claim), and our witness list.

Next, we need to try to get as much information as we can from the defendants. While we can't get everything, such as privileged information (husband/wife, attorney/client, work product), we can still get that which is relating to the claim or defense. Good news! We can also get information which is not admissible as evidence, as long as it may lead to admissible evidence.

Now to get this information, I propose we use the following devices in the order given:

Interrogatories: These are a great way to get cheap information. We can send them to MAC and Deftco to find out what we can. We will be limited to 25 questions, so we should sit down and carefully craft them up together. Once we send them off (to opposing counsel, not the defendant's themselves), we should expect them to respond in about 10 days or so.

Depositions: Although depositions are more costly, they are important. We can use depositions to get information from people who are not even part of the suit. We can depose the employees we know, and also send a list of questions we wish to ask of the "someone" in Deftco's office in NY. Deftco will then look at the questions and find the right person to depose. Be prepared to travel – the courts don't like us imposing lots of travel and costs on witnesses.

Production of documents: We will ask MAC and Deftco to send us all relevant business records on the tannery. Because – if it is a lot, they might send it all and make us look through it (I know, no billable hours in this case).

Examinations: We can only get these if we have physical or emotional injuries – 1) in controversy, and 2) with good cause (time, place, manner, scope of exam given). Since we are only claiming wrongful death and not emotional distress for Pamela, these shouldn't apply (maybe amend claim?)

Request for admission: Once we gather up our evidence, lets see if we can get defendants to admit to some dirt. (Such as prior dumping of waste into the river.) Anything else we can get them to admit to is great, as it is less we have to litigate later.

Can defense depose environmental expert?

Two types of experts exist. The first is a consultant, whose work is protected as work product. The second is an expert witness, whose name/reports/opinions/past reports and preliminary opinions are discoverable.

CONSULTANT
A consultant is an expert who has not been designated as a witness. We "retained" our expert, but your letter was unclear if we designated her. (I don't have the updated core disclosure to double-check – you did update it, right?). If we did not designate her, this work is "work product" and defendants cannot depose her.

Beware, an exception can exist if defendants show that her opinions are substantially needed and that they are unable to obtain a reasonable equivalent. While I am sure defendants will claim that no "reasonable equivalent" exists, since the expert is the best in the country, we can be sure to point out that other experts exist in NY. That would arguably be better for them because FRCP 1 stresses "inexpensive" and our expert is from Boston, not New York, the defendant's "own backyard." Also, FRCP 1 looks for "just" interpretation. It is not "just" for use to pay our expert to work, to generate opinions, only for the defendants to ride our coattails and simply depose our expect for her opinions.

Conclusion

If our expert is a consultant, her opinions are protected under the work product doctrine. (Note – Simply that defendant wanted to retain our expert first does not give them special benefits to bypass the work product doctrine.)

Expert Witness

If we designated our expert as a witness the work product doctrine is waived. Simply put, this means that if our expert is a witness, the defendants can depose her.

Overall Conclusion

If expert is only a consultant, her information is protected under the work product doctrine (assuming no exception given) and no deposition will be allowed. If expert is a designated witness, the defendants are free to depose her.

PREJUDGMENT APPEAL OF DEPOSITION
Several methods may be available for a pre-judgement appeal. These will be discussed below:

Collateral Order
This SMJ of the appellate court is found when the judges decision or order is not based on the merits of the claim as opposed to Rule 54(b). Because the question of whether or not defendants can depose our expert is related to procedure and not the merits of the claim, this would appear to be a collateral order. The good news is that collateral orders are automatically appealable. The bad news is that the Supreme Court has been slowly but surely eroding away at what qualifies as an appealable collateral. Unfortunately, they have not given clear of concise guidelines to determine whether this ruling of whether a deposition could be taken is appealable or not. Thus, I would have to do more research through case law before I could conclusively say whether or nor we are looking at an appealable collateral order. Unfortunately, they have not given clear or concise guidelines to determine whether this ruling of wether a deposition could be taken is appealable or not. Thus, I would have to do more research through case law before I could conclusively say whether or not we are looking at an appealable collateral order.

Injunctions
While this may look like an injunctions - forcing us to make our expert available for testimony - it is not. Injunctions only apply to matters not directly in the court which the case is involved in. Thus, this is not a viable option for us.

Interlocutory decisions
This should be our backup plan in case we don't have a good collateral order to appeal, and assuming we make a timely appeal – 10 days! We need to show: 1 - a question of law - yes, we need to find out whether or not we must give up our expert for deposition; 2 - difference of opinion - yes, judge says we must make expert available, we say "no"; and 3 - materially affect outcome of case - yes, if we have a consultant who is deposed, we may have valuable information given to the defendants which would weaken our position to try this case and may even reveal "weak spots"in our case - which would ultimately affect the outcome of the trial. Thus, using the interlocutory decision as a backup should give the appellate court SMJ to hear our appeal. BUT we need to get the ok from the trial judge and the appellate court to use this method.

Writ
If all other methods are denied, we can ask for a writ. This is an equitable remedy which is available when no legal remedy (such as discussed above) is available. This is truly our last re-judgement alternative for an appeal.

Overall Conclusion

We may get an appeal by using a collateral order or interlocutory decision (with both courts permission). If not, we could try a writ. Although the defendants will ask the court to avoid piecemeal appeals, we need to stress the important of hearing our appeal immediately to avoid prejudice of our case. (Yes, I want to be a partner.)

APPEAL JUDGE'S ORDER
The judge granted defendant's Removed Motion for Judgement. To begin, this motion can only be granted if defendant made a motion for judgement prior to the jury verdict. Because my file is lacking, please check yours to see if defendant did in fact make that motion. If the defendant did not make a timely MFJ, the RMFJ should not be granted if the defendant did make a timely MFJ, we need to investigate deeper.

Although the judge has a lot of discretion to grant a motion for a new trial, the rules for granting a RMFJ are much stricter. The judge has no discretion and instead follow the rule strictly. In short, the rule is much like the MFJ - no reasonable jury can find for the non moving party - giving to the nonmoving party the benefit of the doubt. For the RMFJ, this motion can be granted if there is no question or issue for the jury to decide.

Here, the issue is whether Woburn's water was contaminated with RFP from defendant's tannery. Both sides agree that Luke died from Leukemia which was from exposure to RFP. Also, no dispute exists that Woburn's water was contaminated by RFP. The problem is: defendant claimed that they stopped dumping RFP in to the river in 1992. Since 1992, neither the tannery grounds of the river have had any trace of RFP. We, the plaintiffs, have not presented evidence (on the record before me) that the defendants did dump RFP into the river at any time after 1992.

So we are faced with the uncontested situation: defendant dumped waste in river until 1992. Luke was exposed to RFP in 1992-2000. Defendant has not dumped RFP into river or apparently anywhere on their property since 1992. The river is fast moving, so any RFP dumped by defendant in 1992 would have had sufficient time to move past the ½ mile downstream to Woburn.

In short, we have not presented any evidence that contradicts the evidence presented by the defendants (aside from whether or not the river was indeed contaminated, but it was only to the knowledge of Stonewall that the river was not polluted. If it was polluted from someone other than defendants, he would not have any reason to know, so there is still no controversy.

A jury is allowed to make inferences, but those inferences must be reasonable. Giant leaps of faith unsupported by evidence is grounds for reversible error. Here, the jury determined that it was the defendants who polluted the water from 1995-2000, although no evidence to support that finding was presented. While the water may have been polluted, it appears the culprit was someone other than the defendants.

Last minute thought – Stonewall testified that EPA tested river and found it was free of RFP. Plaintiff's expert testified water was contaminated.



CIVIL PROCEDURE II ....................................................................................... PROF. SLOMANSON
FINAL EXAMINATION .................................................................................... SPRING 2001
............................................................................................................................. EXAM # __________

TABLE OF CONTENTS .................................................................................................1

FILE
Memorandum from Senior Partner ...................................................................................... 2
Complaint .......................................................................................................................... 3
Answer ........... .................................................................................................................. 3
Core Discovery Exchange .................................................................................................. 4
Motion to Depose Expert ................................................................................................... 5
Opposition to Deposition of Expert ..................................................................................... 6
Motion for Summary Judgment ........................................................................................... 7
Opposition to Summary Judgment ....................................................................................... 7
Motion for Judgment/New Trial .......................................................................................... 8
Opposition to Alternative Motion ........................................................................................ 8
New Film Reports (magazine article) ................................................................................... 9
Letter to Client ................................................................................................................... 9
Trial Testimony (Wally Witty) ............................................................................................10
Trial Testimony (Wilma Wawa) .........................................................................................11

LIBRARY
Rules .................................................................................................................................12
Cases ................................................................................................................................12-13

........................................................................Page 1 of 13

 

.............................................................................FILE

Thomas Jefferson & Associates
...............77 Sunset Strip
...............Hollywood, CA

May 16, 2001
Memorandum from Senior Partner
To: Newbie Associate
Fm: Wartorn Pratner
Re: Pat Promoter v. David Deftman
-------------------------------------
Our firm, Thomas Jefferson & Associates (TJA), represents Pat Promoter. Pat retained a lawyer named David Deftman. David is the founding partner of a New York law firm that represents promoters and distributors of American made films to be shown in European theaters. Pat was quite upset with what Pat describes as David's terrible legal representation. Pat thus retained us to sue Mr. Deftman for legal malpractice. David has a fool for a client: he represents himself. We, at TJA, took Pat's case to trial in the Los Angeles federal court, and lost. We have some post-trial motions pending. If they are denied, we may appeal, depending on what your analysis reveals.

Your task is to review this File and answer the seven numbered questions which follow. I have inserted some "Additional Facts" at various points. In addition to the pleadings and motions, these facts will help you understand how this litigation evolved.

I may be overestimating, but I need about three hours of your time to give me your response. I have spared you an enormous amount of research time by attaching a Library of materials which should aid in the quest to link your education with the practice at this firm.

You should apply your general knowledge of the law when responding to the questions provided in this File. Make sure that you incorporate the relevant legal principles and documents included in the Library for this assignment. As I am sure you learned in law school, not every stitch of information within your grasp will be necessarily relevant to the analysis of the legal issues which you will address in your career.

Assume that all documents and trial testimony in this File are admissible under the Federal Rules of Evidence.

Do not discuss waiver in any part of your analysis. Assume that no rights have been waived. (Some former employees have employed waiver to avoid discussing the real issues.)

Finally, don't "dip into the future" when analyzing the issues presented at the various stages of this case. When assessing the correctness of a ruling, don't rely on any future document which was created/dated after a prior event. For example, trial testimony cannot be used to analyze the correctness of a pre-trial motion.

Best of luck,
WP

PS The symbol " * * * " means that I have deleted portions of certain documents.

........................................................................Page 2 of 13

 

Pat Promoter.....)
.........v. ............)
David Deftman. )

.......United States District Court for the
............Central District of California
....Civil Action, File Number 654321-AMB
.........COMPLAINT (Legal Malpractice)

.....1. Pat Promoter is domiciled in the State of California. Defendant Deftman is the senior partner in the New York law firm "Deftman & Associates." He is licensed to practice in New York and California. The matter in controversy exceeds, exclusive of interests and costs, the sum of seventy-five thousand dollars.
.....2. On April 10, 2000, Pat contacted and retained David Deftman to negotiate a series of contracts to promote Pat's motion picture entitled "Part III: Austin Empowers Evil." Deftman agreed to provide legal representation for Pat's venture. However, Deftman did not conduct any negotiations with the key foreign sales agent who markets such films for distribution in Europe. Had Deftman done so, this film would have been marketed in Europe, where two prior films, featuring the Austin Powers character, have been extremely successful. Deftman's negligent representation of Pat thus resulted in Pat's not obtaining the foreign sales distribution rights necessary to promote the referenced motion picture.
.....3. Wherefore, Pat claims damages against David Deftman in the amount of one hundred million dollars, for which the plaintiff claims the right to a jury trial of this action.

Date: May 1, 2000................................................... Signed:
Wartorn Pratner, State Bar # 61348
............................................................................................ Thomas Jefferson & Associates
.............................................................................................Attorneys for Plaintiff

 

Pat Promoter.....)
.........v. ............)
David Deftman. )

.......United States District Court for the
............Central District of California
....Civil Action, File Number 654321-AMB
..........ANSWER (Legal Malpractice)

.....Defendant Deftman herein answers Pat Promoter's Complaint with a general denial of Pat's claims, which are predicated on an alleged breach of the parties' Retainer Agreement.

..................................................................Affirmative Defenses
.....1. This court lacks the power to hear the plaintiff's case. The motion picture industry's New Film Reports (see Library) is incorporated by reference, in support of this first portion of the defendant's motion.
.....2. Deftman does not have the requisite ties with the forum to require Deftman to defend against Pat's claim. At no time did the defendant enter into the forum to negotiate or otherwise undertake any representation regarding the claim alleged in Pat's Complaint, nor did he do so for any other California resident.

Date: June 1, 2000..................................................... Signed:
David Deftman State Bar # 77755
...............................................................................................Deftman & Associates
...............................................................................................Attorneys for Defendant


Question 1: Did the court have subject matter jurisdiction over Pat's claim?
Question 2: Did the court have personal jurisdiction over David Deftman?

........................................................................Page 3 of 13

 

Additional Facts: The court ultimately decided that Pat's case could proceed. The parties then exchanged documents which I have summarized immediately below:

...............................................................Core Discovery Exchange..

Pursuant to FRCP 26(a)(1), Pat Promoter herein provides the following information–

Witnesses:
• Pat Promoter
• Wally Witty (foreign sales agent)
• Barney Rubble (film producer)

Documents:
• Computation of damages

Pursuant to FRCP 26(a)(1), David Deftman herein provides the following information–

Witnesses:
• David Deftman
• Wilma Wawa (Editor, New Film Reports)


Documents:
• Professional negligence insurance certificate

Question 3: I need you to prepare a very brief discovery plan for the potential retrial of Pat's legal malpractice action against David Deftman. The reason for this request is that we may eventually obtain relief for Pat, in the form of a new trial (which you will review later in another portion of this File). Determine what, if any, additional discovery we would then pursue during the potential retrial of this action. By the way, during this first trial of Pat's case, the parties exchanged interrogatories and took the depositions of Pat, David, Wally, and Wilma.

Our client, Pat, has limited financial resources, because of the failed movie venture described in Pat's Complaint for legal malpractice. Also, as you will learn here, our client's limited ability to pay costs and fees dictates the amount of discovery we can undertake. Thus, you should recommend discovery in only a couple of instances.

Core Discovery Exchange......................Page 4 of 13

 

Additional Facts: Defendant Deftman retained the services of a well-known Los Angeles legal malpractice expert named Jane Doe. We wanted to take her deposition, before the trial of this action, but <that slimebucket> Deftman was unwilling to allow her deposition without judicial intervention. We thus filed the following document with the trial court (which was opposed by the defense, as indicated on the next page):

Pat Promoter.....)
.........v. ............)
David Deftman. )

............United States District Court for the
.................Central District of California
.........Civil action, File Number 654321-AMB
..MOTION TO DEPOSE DEFENSE EXPERT

.....1. Plaintiff, Pat Promoter, herein requests an order of the court requiring the defendant's expert, Jane Doe, to submit to a deposition by the plaintiff's attorney. The purpose of this deposition would be for the plaintiff's law firm to adequately prepare for the trial of this action.
.....2. Plaintiff's lawyers previously attempted to make suitable arrangements to depose Ms. Doe, during a Meet and Confer session. However, the defense lawyer refused to cooperate, claiming that our request was beyond the scope of acceptable discovery.
.....3. The well-known purpose of the discovery provisions of the Federal Rules of Civil Procedure is to ensure the mutual exchange of relevant information. Hickman v. Taylor, 329 U.S. 495 (1947). In the instant case, the next closest legal malpractice expert, who possesses the knowledge needed for relevant expert testimony in this action, is John Doe who practices in San Francisco.

.....Wherefore, the Plaintiff prays for an order requiring Mr. Deftman to produce Jane Doe for a deposition on matters relevant to this action.

Date: August 1, 2000
................................................. Signed: Wartorn Pratner State Bar # 61348
..............................................................................................Thomas Jefferson & Associates
..............................................................................................Attorneys for the Plaintiff


........................................................................Page 5 of 13

 

Pat Promoter.....)
.........v. ............)
David Deftman. )

............United States District Court for the
.................Central District of California
.........Civil action, File Number 654321-AMB
..DEFENSE OPPOSITION TO PLAINTIFF'S
..MOTION TO DEPOSE DEFENSE EXPERT

.....1. The defense has undertaken considerable expense to hire a knowledgeable expert to assist in the defense of Pat Promoter's legal malpractice action. While one purpose of discovery is the exchange of information, there are limits to pre-trial discovery. Thus, a party may not take advantage of another's industry and efforts on behalf of a client. Hickman v. Taylor, 329 U.S. 495 (1947).
.....2. Given that the plaintiff's law firm did not take steps to retain someone like Jane Doe at an earlier stage in this litigation, it would be unfair to allow Pat's attorneys to have access to Jane Doe's mental impressions via deposition at this stage in this litigation. The unfairness of a request for this form of discovery is further illustrated by the plaintiff firm's thus attempting to ride our coat tails by seeking free access to our chosen expert.
.....Wherefore, the defendant prays for an order prohibiting the plaintiff from deposing Jane Doe on matters relevant to this action.

Date: August 11, 2000............................................. Signed:
David Deftman State Bar # 77755
.............................................................................................Deftman and Associates
.............................................................................................Attorneys for the Defendant


Question 4: The trial court ruled against us, and thus denied our request for the deposition. Was the court's
....................decision correct?
Question 5: Would an appellate court possess the subject matter jurisdiction to review this decision, prior to ....................final judgment? Assume that the trial judge would not consider this particular order to be an ....................appropriate one for appellate review prior to final judgment. (We won't charge the client for ....................your analysis of this point. I'm just curious about whether I could have appealed at this stage of ....................the litigation.)

........................................................................Page 6 of 13

 

Additional Fact: After a significant amount of discovery, when this case was about to go to trial, the parties filed the following documents:

Pat Promoter.....)
.........v. ............)
David Deftman. )

.................... United States District Court for the
.........................Central District of California
................Civil action, File Number 654321-AMB
DEFENDANT'S MOTION for SUMMARY JUDGMENT

.....1. The defendant, David Deftman, requests that the court grant this Motion for Summary Judgment, because the plaintiff cannot prevail were this case to go to trial.
.....2. Without the court's having to consider any other evidence the plaintiff has amassed in its favor, Pat cannot win this legal malpractice case unless Pat could have prevailed at trial in the underlying action. David v. Goliath Industries (Library). That the plaintiff cannot prevail, as a matter of law, is established by the January 1999 issue of the New Films Report, a copy of which is incorporated by reference in this motion (see File).
....Wherefore the defendant requests that this court enter summary judgment in its favor.

Date: November 14, 2000.................................. Signed:
David Deftlaw State Bar # 77755
.......................................................................................Deftlaw & Associates
.......................................................................................Attorneys for the Plaintiff

 

Pat Promoter.....)
.........v. ............)
David Deftman. )

....................United States District Court for the
........................Central District of California
.................Civil action, File Number 654321-AMB
..OPPOSITION to MOTION for SUMMARY JUDGMENT

.....1. The defendant's argument falls woefully short of the standard for obtaining a summary judgment in the federal courts. An article written by an editor of a magazine, who is not even a party to this law suit, can hardly be the basis for depriving Pat Promoter of her day in court.
.....2. Even if one were to assume the admissibility of that article, and its relevance to this law suit, granting summary judgment would effectively deny the plaintiff her right to jury trial.
.....3. Austin Powers is a popular character, who appeals to the masses. The plaintiff would have made millions of dollars in the European market, had the plaintiff's former lawyer negotiated the contracts, as promised, when he initially agreed to take the underlying case to represent Pat Promoter.
.....4. The unprofessional letter, whereby Deftman abandoned his former client Pat, is incorporated by reference as if set forth in this motion (see File). That letter, standing alone, is a sufficient basis for to denying this motion.
....Wherefore the plaintiff requests that this court deny summary judgment and permit this case to go to trial.

Date: November 26, 2000..................................Signed:
Wartorn Pratner State Bar # 61348
......................................................................................Thomas Jefferson & Associates
......................................................................................Attorneys for the Plaintiff

 Question 6: The court denied summary judgment. Did it rule correctly?

........................................................................Page 7 of 13

 

Additional Facts: At trial, the jury found for the defendant, David Deftman. The parties thereafter filed the following documents:

Pat Promoter.....)
.........v. ............)
David Deftman. )

....................United States District Court for the
........................Central District of California
.................Civil action, File Number 654321-AMB
...PLAINTIFF'S MOTION for JUDGMENT/NEW TRIAL

.....1. The plaintiff, Pat Promoter, hereby requests that this court grant a Motion for Judgment. Both David Deftman's Letter to Client, and the evidence adduced by the Trial Testimony, dictate this result. Each is incorporated by reference as if fully set forth in this motion.
.....2. In the event that the court does not grant the requested post-trial Renewed Motion for Judgment, Pat requests that the court grant a New Trial.
.....3. This alternative motion is supported by the attached Trial Testimony, which is incorporated herein as if set forth in its entirety.

Date: April 14, 2001
.................................................. Signed: Wartorn Pratner State Bar # 61348
..............................................................................................Thomas Jefferson & Associates
..............................................................................................Attorneys for the Plaintiff

 

Pat Promoter.....)
.........v. ............)
David Deftman. )

....................United States District Court for the
........................Central District of California
.................Civil action, File Number 654321-AMB
......OPPOSITION TO ALTERNATIVE MOTION for ....................JUDGMENT/NEW TRIAL

.....Defendant Deftman respectfully requests the court to deny the requested relief. The Letter to the Client and the Trial Testimony establish that the jury correctly decided in favor of the defendant. Thus, this court cannot, and should not, disturb the jury's findings of fact.

Date: April 24, 2001 ..................................................Signed:
David Deftman State Bar # 77755
..............................................................................................Deftman & Associates
..............................................................................................Attorneys for the Defendant


Question 7: The trial court denied both parts of Pat's motion. Was that ruling correct?

........................................................................Page 8 of 13

 

New Film Reports
.....Issue #74
January, 1999

Industry Trends for the Last Decade of the Millennium
.................by Wilma Wawa, Senior Editor

* * *

While many "followup" films are produced each year, there is a clear hierarchy of prospects for success. Industry trends indicate that the success rate for revised versions of popular films may be ranked in the following descending order of financial success (from best to worst):

(1) Decades-later "remakes" of the most popular films–those which are "timeless," just get better.
(2) "Part II" versions of very popular films, when made within two years of the initial release–the
......success rate of this intermediate film category is generally quite good.
(3) "Part III" versions of films which initially appealed to only limited market segments–the vast
......majority of these mere rehashes have been financial disasters for virtually every promoter.

..* * *

------------------------------------------------------------------------------------------------------------

...................................................................Letter to Client
Pat Promoter
1010220 Savabuck Road
Beverly Hills, Ca 92010
..........................................Re: Part III: Austin Empowers Evil

Dear Pat:
.....
As you know, I just moved from a home which I occupied for twenty-one years. There were unforeseen problems with the escrows on both ends of this transaction, and I also had to squeeze in a cross-country trip for a week. Sorry for the delay in getting back to you with my final analysis of your case.
.....Given the nature of your claim, and the press of other matters at the firm, I have decided that I can no longer represent you in your film endeavors. The foreign sales agent for such films told me that his assessment, based on an article in the New Films Reports magazine, Austin Powers should have stayed frozen in time–rather than being resurrected for yet another attempt at immortality. Put as diplomatically as I can state it, your movie would not have a snowball's chance of surviving in hell.
.....If you still wish to pursue this matter, then you should obtain the services of another lawyer. There is always someone in town who will take on such cases.

Keep truckin,
Dave Deftlaw

........................................................................Page 9 of 13

 

......................................................................Trial Testimony
................................In the Legal Malpractice Case of Pat Promoter v. David Deftman
.................................................................File No. 654321-AMB

Additional Facts: After testimony by the parties, and their respective legal malpractice experts, Pat called Wally Witty as the plaintiff's star trial witness. Later, the defense called Wilma Wawa as its star witness. Excerpts from their respective testimony follows:

Direct Examination of Wally Witty by the Plaintiff's Trial Counsel (Wartorn Pratner):
Q: Wally, may I call you that?
.....A: Yes, please do.
Q: Wally, can you tell us what you do for a living?
.....A: I am the Foreign Sales Agent for a Hollywood company that markets American-made films in Europe. Q: Did you have any business dealings with the defendant, David Deftman?
.....A: Yes, briefly. He was supposed to present a draft PDMP.
Q: And what is a PDMP?
.....A: Oh, sorry...that would be a Product Description Marketing Plan. That's the standard document
..........whereby Mr. Deftman's client would establish the viability of his film Austin Empowers Evil. We .........were then to make the final decision regarding whether this film would actually be marketed and .........distributed in Europe.
Q: Did you have any experience with this particular film character in the relevant market?
.....A: Yes. The first two pictures were a smashing success. Although everybody wants to be a James Bond, .........Austin Powers more truly represented something that the average moviegoer could relate to.
Q: Thanks for your detailed explanation. Let's return to something you said a moment ago: you said that Mr. ....Deftman was "supposed to present" a draft document?
.....A: Yes. He never showed up on the day we were scheduled to meet to finalize the marketing of his .........client's film.
Q: Then what happened?
.....A: I lost interest in this project and moved onto others.
Q: Did he provide an explanation for his failure to show up?
.....A: No, never a word. Never heard from him again.
Q: So, to wrap up, to market this movie, Mr. Deftman would have to have utilized your company's services?
.....A: Yes sir. That's correct. All of the US films for foreign distribution pass through our skillful hands.

By counsel for the Plaintiff: No further questions, Your Honor.
By the court: Defense counsel, you may proceed with cross-examination.
By defense counsel: We have no questions, Your Honor. It is time to cut to the chase.
By the court: Quite colorful, counsel. Could you be more specific?
By defense counsel: At this time, we would now like to call our star defense witness.
By the court: You may proceed.
........................................................................Page 10 of 13

 

Direct Examination of Wilma Wawa by the Defendant's Trial Counsel (David Deftlaw):
* * *
Q: Wilma, would you next tell us what you do for a living?
.....A: I am the Senior Editor for New Film Reports magazine.
Q: And what is the purpose of that magazine?
.....A: Our magazine is the one which everyone associated with Hollywood film production uses to assess .........the viability of "remakes" or "sequels" of old movies or subsequent films in a film series.
Q: What is your circulation?
.....A: Roughly 120 over 80.
Q: No, no, I mean how many copies of your product do you sell?
.....A: We sell about 37,000 copies of our monthly Reports to subscribers who are professionals in the field. .........Mostly in the L.A. area and major foreign cities with a local film industry.
Q: Wilma, how long have you worked for New Film Reports?
.....A: Twenty-three years.
Q: How long have you been the Senior Editor?
.....A: It will be thirteen years, this month.
Q: Did you write an article, for the January 1999 issue of NFR, entitled Industry Trends for the Last Decade ....of the Millennium–which has previously been identified as Defense Exhibit "A?"
.....A: Yes.
Q: Could you provide us with a brief summary of its content?
.....A: That's easy. "Part III" of the Austin Powers series is a third-rate film.

By plaintiff's counsel: Objection, Your Honor. Calls for speculation on the part of this witness.
By the court: Well, let me instruct the witness. Ms. Wawa, would you please answer the questions .....directly, without providing any personal reflections? That way, we can get to the basics more quickly and .....without interruptions by trial counsel.

Q: Wilma, please summarize exactly what was stated in your article.
.....A: [At this point, Wilma restates the substance of the New Film Reports in this File.]
Q: Does your testimony today, which is based on your 1999 article, accurately reflect your views
at the time you wrote it?
.....A: Yes.
Q: How about now?
.....A: Hum ... don't know. Haven't thought about it. This is a new millennium you know.

By plaintiff's counsel: No further questions, Your Honor. We hereby enter the previously marked Defense Exhibits "A" (New Films Reports) and "B" (Letter to Client) into evidence.

[Cross-examination did not provide any further relevant evidence.]

........................................................................Page 11 of 13

 

LIBRARY

...........................................................................Rules
Federal Rules of Civil Procedure:
Rule 1. Scope of Rules
.....These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

Federal Rules of Evidence:
Rule 702. Testimony by Experts
.....If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

............................................................................Cases
.................................................................Umpty vs. Scruntch
..........................................................991 F.9th 111 (9th Cir., 1991)
.....When the trial judge granted Umpty's Motion for New Trial, she reasonably determined that the Federal Rules of Civil Procedure (FRCP) encourage a mutual exchange of all information within the scope of the Rules. Thus, only budgetary considerations might limit the parties from pursuing all matters within the scope of discovery.
...........................................................................* * *
.....On the other hand, the case at hand yields the opportunity to put to rest a gnawing question which trial courts in the is circuit have struggled with for some time: Whether a party seeking discovery may take a no-holds-barred approach subjecting the targets of such discovery to a second round of inquiry in what is still the same dispute. FRCP 1 thus guides us in our decision, today, that we cannot condone the fresh discovery of information from resources already obtained in a prior action involving the same parties–other than the routine supplementation of previously provided answers or materials.

................................................................Clem v. Cadittlehopper
...........................................................992 F.9th 222 (9th Cir., 1992)
* * * No one doubts that the law in every circuit is crystal clear: retrial of an action between the same parties, does not present the need to analyze either res judicata or collateral estoppel. The trial of an action between two parties is not final until the new trial or any related first suit appeals have occurred. However, the "Law of the Case" doctrine would preclude a party from relitigating a matter resolved by a pre-trial motion or any prior appeal of the first action.

 

[more cases on next page]
........................................................................Page 12 of 13

 

.............................................................. David v. Goliath Industries
.............................................................993 F.9th 333 (9th Cir., 1993)
* * * The critical factor in legal malpractice litigation is whether the plaintiff's former lawyer--now a defendant in the ensuing action by the disgruntled client–would likely have obtained a satisfactory result in the underlying case for which the defendant lawyer provided representation.
.....Although the defendant in this case did not provide any intellectual spark, when representing his former client, his prosecution of the plaintiff's case cannot be said to have fallen below the minimum standards for lawyers in the relevant legal environment. While we do not necessarily approve of his methods, no appellate court can readily substitute its view of how to best represent a client in a given scenario.
.....Our task, instead, is to ensure that trial verdicts are not disproportionately at odds with the evidence presented at trial.

.........................................................................Contra v. North
................................................................994 F.9th 444 (9th Cir., 1994)
.....Under the Federal Rules of Evidence, expert testimony may be introduced for the purpose of assisting the trier of fact in search of the truth. The trial judge's obligation is to ensure that the proposed expert testimony will be relevant to the issues, and likely to be helpful, especially in complex cases.
...............................................................................* * *
.....While expert testimony may be employed, generally it is specifically required when the issue to be determined involves the local standard of care being allegedly breached by the defendant's professional conduct. Such testimony is needed to help a jury match the facts with the law, which can be beyond the ken of the average juror's life experience. Defining the standard of care, then, is often a difficult task, even for members of the relevant profession–not to mention a lay juror who is unfamiliar with the standard of care and court proceedings generally.
................................................................................* * *
.....[T]hus, a variety of circumstances may fall within FRCP 26(b)(3)'s hardship provision. While today's multi-faceted court opinion does not address all of its contours, courts of this circuit have recognized economic hardship in certain circumstances. While no bright line rule emerges, the essential policy considerations include the local availability of competent individuals who can assist in the pursuit of the relevant facts, while aiding counsel with minimizing the complexity of the proceedings. In an effort to balance the potentially conflicting values of needing for information and minimizing unwarranted intrusions by lazy adversaries, the trial judges of this circuit are expected to assess pragmatic options such as cost-sharing.

...................................................................[ END OF EXAM ]


........................................................................Page 13 of 13

 

....................................................Prof's Issue Outline (Spring 2001)

QUESTION 1: SMJ OVER PAT'S CLAIM
• No FQ presented: malpractice claim
Domicile: no P & no D same st
• ¢: D senior partner NY law firm
• Answer = no other CA clients
• Letter = recent move to ?
Amount: > 75 & legal certainty
NFR
• D: = "III's" financial disaster
...P: • majority/virtually/when ltd mkt
.......• first two films "extremely successful"

QUESTION 2: IPJ OVER DEFTMAN
• MCPARA / 5 factors
D: • NY law firm (no offices CA)
.....not do anything in forum
.....• P contacted D
.....• "nor any other res CA" (no gen. juris)
P: • D licensed CA = some contact
....• rep P in CA (retainer agreement-Answer)
....• D sent ltr into forum

QUESTION 3: BRIEF DISCOVERY PLAN
Umpty prohibits "fresh" discovery same
• Depose Barney Rubble (film producer)
• draft PDMP/Retainer/new consultant

QUESTION 4: DENIAL OF JANE DOE DEPO
• Two types "expert"
• Work Product (consultant)
• FRCP 1 just/inexpensive determination
Scope problem: 26b3/Contra econ hardship?
• P policy: mutual exchange (Hickman)
• D policy: take advantage adversary (Hickman)
Gist this case:
• P: next closest San Fran = econ hardship
• D ‘monopolized' local expert
Contra P: • "need for info" policy
.................• "local availability competent"
.............D: • "free access unfair" (Opposition)
.............P: • "cost sharing"
............ P: • "budgetary considerations limit" (Umpty)
.............D: • "minimize intrus lazy adversary"

QUESTION 5: APPELLATE SMJ re DEPO ORD
Policy • piecemeal v. too important deny rev.
• Cohen CO--collateral merits
...SCt assault on automatic appeal
• 1292b--joint discretion)
...• Judge "not appropo prior final jmt"
• Writ route--no other adequate rem law
...• likely basis b/c
Clem: not final, so no RJ/CE issues

QUESTION 6: SUMMARY JUDGMENT
Black Letter:
• no genuine issue / no reas jury
• inferences favor responding party
Application:
Mat'l Fact–
• Goliath: P prevail only orig case likely win
D: • NFR Part III films = disaster
P : • majority / virtually / only when ltd mkt
.....• NFR = "Trends for Last Decade"
.....letter of abandonment suggests poss succ
• NFR & Ltr conflict? / Neither resolves
Deny jury trial
• no 7th Amend prob, if evid shows nothing to decide

QUESTION 7: MOTION for JUDGMENT
• no reas jury hold for opposing party (D won)
• must slam dunk for P for judge to grant
Goliath: P likely succeed underlying claim?
Letter to Client
P: • abandonment/malpractice
D: • may be shabby, but app ct not 2d guess
NFR
D: • proves disastrous project
P: • addressed "last decade"
....• majority / virtually / only when ltd mkt
Trial Testimony
• Wally (waiting) v. Wilma (waffled)
MOTION for NEW TRIAL
• prejudicial error
Verd against weight evid? (~ RMFJ)
• judicial discretion to weigh evid
Goliath: P must likely successful result

 

...................................................Sample Student Answer (Spring 2001)

Q1: SMJ

Subject matter jurisdiction is the power of a court to hear a particular case. Federal subject matter jurisdiction can be invoked under 28 USC §1331 (Federal Question) or 28 USC § 1332 (Diversity of Citizenship).

Pat's complaint does not specifically state which type of subject matter jurisdiction is being claimed. He appears to be claiming §1332 because he mentions domicile, which is irrelevant to §1331. One foreseeable route to §1331 jurisdiction is to claim that the action arises under interstate commerce. After all, the action is between a California citizen and a senior partner of a New York law firm. Also, the underlying subject matter has to do with the international marketing of a film (international treaty involved). Since Pat appears to be claiming §1332 jurisdiction, that is where the analysis will focus.

Have the Requirements of §1332 Been Met?

Federal jurisdiction based on diversity of citizenship requires satisfaction of two elements: 1) that the amount in controversy exceed 75,000, exclusive of interests and costs; and 2) that the action be between parties that are domiciled in different states.

Amount in Controversy

Subject matter jurisdiction will not be denied for failure to meet the minimum amount unless it can be down to a legal certainty that $75,000.01 could not be recovered. Paul claims damages of $100,000,000 – on amount far in excess of the minimum amount.

Deftman bases his claim of lack of SMJ on the motion picture industry's "New Film Reports" as contained in our file. That report states: "‘Part III' versions of films which initially appealed to only limited market segments – the vast majority of these mere rehashes have been financial disasters for virtually every promoter." This report is insufficient to establish to a legal certainty that the minimum amount could not be met.

First of all, it is unclear whether Pat's motion fits in the category of films that "initially appealed to only limited market segments." Austin Powers I and II were actually widespread successes. They were both "extremely successful" in Europe. It is difficult to be extremely successful when appealing to only a limited market. (This contention is also supported by Mr. Witty's trial testimony that those films appealed to the "average" moviegoer.)

Secondly, the New Film Reports statement applied only to the "vast majority" of such films. That means some of the described films were successes. Therefore, there is no legal certainty that Pat's film would have failed.

Thirdly, a movie can be a "financial disaster" and still make millions of dollars. Even the worse movies make more than $75,000 oftentimes.

Domicile

A party's domicile is determined by 1) presence and 2) intent to remain. Mas v. Perry. Pat is domiciled in California, and this fact is not contradicted. Diversity of citizenship is destroyed only if Deftman is also domiciled in California.

There are two pieces of evidence that suggest Deftman might be domiciled in California: 1) the fact that he is licensed to practice there and 2) the fact that he recently moved. Deftman does not state where he recently moved. Deftman does not state where he moved to. Because he is a senior partner of a law firm in New York, it is unlikely he moved to CA (which would be his burden to prove). Furthermore, if Deftman moved to CA, that flies in the face of his claim that the district court lacks personal jurisdiction.

In conclusion, the trial court properly determined that it has the required subject matter jurisdiction to hear the case.

Q2: IPJ

In personam jurisdiction is the power of a court to exercise jurisdiction over a person. In a state like CA where the long arm statute extends as far as the constitution will allow, an analysis of in personam jurisdiction is reasonably simple.

In this situation, the court looks to three guideline tests: minimum contacts (International Shoe), purposeful availment (Hanson v. Dencla), and reasonable anticipation (World Wide Volkswagen). These guidelines only need to be examined if there is not general in personam jurisdiction over the party. Because Deftman does not appear to reside in CA, there is a question of specific jurisdiction.

Minimum Contacts [Here, one of my exam comments was that dividing into three parts would probably result in "Peat, Repeat, and Threepeat" of same argument, over, and over, and over.]

This guideline asks whether the party has had sufficient contact with the forum state to justify exercise of in personam jurisdiction. Deftman not only is licensed to practice law in California, he also entered into a contract with a California resident. This would satisfy most courts that there are minimum contacts. Deftman states that he never entered the forum "to negotiate or otherwise undertake any representation," but this is overcome by the fact that he is licensed to practice in CA.

Purposeful Availment

This guideline asks whether the party has purposefully availed himself of the benefits offered by the state. Deftman purposely chose to become licensed to practice law in CA. This license is a benefit offered by the state.

Reasonable Anticipation

This guideline asks whether the party could have reasonably anticipated being called to defend a low suit in the jurisdiction. Because Deftman is licensed to practice in CA it is reasonable to assume he has some clients there. If he negligently represented any of these clients he would have to answer in California. That is exactly what happened here.

In conclusion, the district court's exercise of a personam jurisdiction was proper.

Q3: Brief Discovery Plan [Exam Q said "very brief" & recommend just "a couple" of discovery events.]

Discovery in a second trial will be limited by three factors: 1) Pat's limited financial resources, 2) the holding from Umpty, and 3) the holding from Clem. The discovery will be bolstered by the two general principles: 1) that the FRCPs "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action," (FRCP 1), and 2) the notion that the FRCP, "encourage a mutual exchange of all information within the scope of the Rules." (Umpty)

There are five discovery devices described in the FRCPs: depositions (FRCP 30), interrogatories (33), production of documents and things (34), examinations (35), and requests for admissions (36). No examinations appear to be called for, but the other four devices might be used.

Depositions

Depositions are the only discovery device that can be used on non-parties (FRCP 30(a)). They tend to be expensive, but they are useful in that they require immediate answer.

Pat would like to obtain the deposition of Deftman's expert: Jane Doe. Unfortunately, Clem seems to indicate that this cannot be obtained. That case describes the "Law of the Case" doctrine which a party cannot re-litigate "a matter resolved by a pre-trail motion." Access to Jane Doe's testimony was denied in a pre-trial motion.

Umpty precludes "the fresh discovery of information from resources already obtained in a prior action involving the same parties – other than the routine implementation..." As depositions have already been taken from Deftman, Ms. Wawa, and Mr. Witty; there depositions cannot be taken again. It would be wise to remind these parties of their duty to update under FRCP 26(e), though. Barney Rubble was not previously deposed, and he should be deposed now.

General note: The scope of discovery is limited to matters that are 1) not privileged, 2) relate to a claim or defense or with good cause relate only to the subject matter, and are 3) admissible as evidence or reasonably calculated to lead to admissible evidence (FRCP 26(b)).

Interrogatories

Interrogatories may only be addressed to parties and are limited to 25 in number (FRCP 33(a)). Because, interrogatories were already addressed to Deftman, Umpty precludes further interrogation. Again, Deftman should be reminded of his duty to update under FRCP(e).

Production of Documents

A party may request production of documents within the scope of discovery that are in the possession, custody, or control of the opposing party (FRCP 34). Pat should have sought any records of Deftman's that showed the extent that he did attempt to promote Pat's movie. Again, Umpty may severely limit such discovery now.

Requests for Admissions

To the extent not precluded by Umpty, Deftman should be requested to admit: 1) that he did not draft the PDMP, and 2) that he did not show at the planned meeting with Mr. Witty.

Additionally, if Jane Doe was used by Deftman (the facts do not indicate either way with certainty), Pat would be entitled to her deposition.

In conclusion, Umpty appears to severely limit the renewed discovery. Perhaps it only prohibits discovery aimed at the same information. At the least, Barney Rubble should be disposed. Next, Pat should seek relevant documents from Deftman and admission of this failure to attend the meeting and draft the PDMP. Deposition of Jane Doe can probably not be obtained.

Q4: Request for Deposition of Jane Doe

If a person is named as the trail expert for the opposing party than that person may be deposed and they also must turn over a written report of their opinions and findings (FRCP 26(a)). Deftman only indicates that Jane Doe was retained to "assist in the defense," he does not explicitly name her as a trial expert. Deftman did eventually use a trial malpractice expert at trial, but it is not clear whether this was Jane Doe.

If a party uses an expert only for consultation, then that person and her information fit within the qualified work product privilege. The standard for an opposing party to obtain an expert consultants' information/deposition is that there are "exceptional circumstances" under which it is "impracticable" to obtain similar information elsewhere (FRCP 26(b)). Similar to substantial need standard but specific to consultant experts (see FRCP 26 (b)).

Exceptional Circumstances

A party must demonstrate exceptional circumstances, or else these requests to depose an opposing party's expert consultant will be denied. (Perry v. Darley) Jane Doe is a "well known" legal malpractice expert, and that has limited financial resources to employ anyone else. Contra indicates that expert testimony is "specifically required when the issue to be determined involves the local standard of care being allegedly breached." Goliath indicates that this is exactly what Pat needs to prove here.

Of more help to Pat is Contra's finding that "economic hardship in certain circumstances" will constitute sufficient hardship. Furthermore, this case states that the judges are "expected to assess pragmatic options such as cost-sharing." This liberal standard suggests that the exceptional circumstances requirement has been met.

Impracticable

This may be the reason the judge denied the deposition request. Pat's motion indicates that there is another expert in San Francisco. As this case is in the Central District of California, the judge probably would expect pat to contact that expert, Jan Doe.

Pat could have again argued economic hardship. Without more evidence on the extent of this hardship, the district court judge's decision was probably appropriate. Furthermore, Deftman indicates that Pat did not proceed to seek similar information earlier.

Q5: Appeal

Because the trial judge would not certify an appeal, the only possible routes are contempt, injunction, collateral order, writ route, and class action. Contempt and class action routes are not suggested by the facts, but the others are.

Injunction

28 USC §1292(a) creates an automatic appeal route for all injunctions. Because the trial judge's order prevents pat from deposing Jane Doe, it might be considered an injunction. Gulfstream Aerospace Corp. v. Magacamus Corp., though, states that procedural matters cannot be appealed through §1292(a). Because the discovery process is a matter of procedure, the injunction rate will be unsuccessful.

Collateral Order

Collateral orders are automatically appeal. The elements were established in Coher v. Beneficial: 1) a judgement, 2) or an issue collateral to the merits, 3) that is effectively unrecievable open appeal of the final judgment. The trial judge's decision about the deposition resolved an issue not on the merits, so the first two elements are satisfied. The Supreme Court has used the third element to severely limit the use of the collateral order appeals.

Because of the Supreme Courts dislike of the collateral order appeal route, any applied under Coher is an uphill battle. In this case though, the third element appears satisfied. If the trial proceeds without Pat being able to depose Jane Doe, the damage will already be done. Given the "Law of the Case" doctrine from Clem, Pat could never challenge the original trial court decision.

Writ Route

Under 28 USC §1651, the appeals courts may receive any matter when they deem it "necessary and appropriate" in the aid of their respective jurisdictions. LaBuy v. Howes Leather Co. is one example of a case where §1651 was successfully involved. Writ review will not be granted if there is an adequate remedy at law. There is no such remedy in Pat's situation, the only thing that will help is an equitable order to command allowance of the deposition.

This route may be the most likely to succeed given the restraints that have been placed on the collateral order route. It would be especially likely to succeed if Jane Doe where indeed to be used as a trial expert.

Q6: Summary Judgment

Four elements must be satisfied in order for a motion for summary judgment to be granted: 1) no genuine issue as to any material fact (FRCP 56 (c)), 2) no reasonable jury could find for the opposing party (Anderson), 3) the affidavits must reflect personal knowledge and be admissible as evidence (FRCP 56 (e)) and 4) the evidence must be examined in the light most favorable to the non-moving party (Addickes V. Kress).

Genuine Issue of Material Fact

If after examining the evidence and affidavits on both sides there is any issue of material fact, the motion must be denied Deftman used Goliath and the New Films Report as his evidence. Pat used the letter from Deftman and Pat.

Goliath provides that a legal malpractice claim can succeed only if it is demonstrated that the legal representation fell "below the minimum standards for lawyers in the relevant legal environment." This deals wit the issue of causation. Pat's counter-evidence, the letter, only establishes that Deftman quit working for Pat. This does not establish causation. A summary judgment motion can succeed by pointing out that the other party has no evidence. Celotex Corp. v. Catrett.

Pat can point to the part of the letter that indicates that Deftman quit partly due to pressing "other matters at the farm." This can create the presumption that Deftman left Pat "high and dry" which would arguably fall below any communities standards of professional conduct.

The News Films Report goes to the issue of damages. It is inconclusive because it talks about the "vast majority" of films (of which Pat's may not even be the same type – see SMJ discussion). There is a factual question of whether Pat's film may have been of the type that would have succeeded.

No reasonably jury ...

This analysis is similar to the immediately proceeding analysis. The real problem is causation, because Pat's evidence only consists of a letter. A reasonable jury could possibly infer from this letter unprofessional conduct (quitting due to personal pressures from moving and unrelated matters at the firm, and making fun of Pat's movie – snowball's chance in hell comment) that falls below community standards.

Based on personal ...

The Goliath case is admissible as case precedent and is based on the judicial system's personal knowledge. The "New Films Reports" is admissible (per the memo) and written by the senior editor of the magazine. The letter also suggests that Deftman did contact the foreign sales agent and quit on his advice (strong end for Deftman).

Evidence must be looked at ....

This element may be Pat's saving grace. His evidence on causation is weak, but even weak evidence can overcome a motion for summary judgment because it must be looked at in the light most favorable to the non-viewing party.

Q7: Motion for Judgment (New Trial)

A party may alternately request both motions (FRCP 50(b)).

Renewed Motion for Judgment

This motion can only be successful if there was an original motion for judgment prior to jury instructions. The facts are silent on this question.

Assuming that there has been an original motion for judgment, two elements must still be met: 1) the legally sufficient evidence basis such that, 2) no reasonable jury could find for the opposing party. A judge may not weigh the evidence when considering this motion.

The trial testimony reveals that Deftman's only defense was Ms. Wawa's testimony. She even states that the article tending to establish no damages might not be relevant now. Pat's evidence established that Deftman did not complete a PDMP as required and did not attend a required meeting with Mr. Witty. The evidence tends to indicate that Deftman breached a duty to Pat and because Pat had no other alternatives (Mr. Witty representing the only such company), that breach caused injury. Deftman's evidence does not establish lack of damages.

Denmar v. Spain is an example of a case where a renewed motion for judgment was grated there was no evidence of causation and the motion was granted against the plaintiff. Here the jury may not have believed Mr. Witty's testimony or they may have given a lot of credit to the New Film Reports.

Because the case is not a slam-dunk, like Denmar v. Spain, the court will probably not grant this motion.

Motion for New Trial

According to FRCP 59 a new trial may be granted for any of the reasons traditionally used the essential element is "prejudicial error." Minn. Rule of Civ. Proc. J9.01 delineates common grounds for grating a new trial. Among those that may apply here are: 1) verdict not justified by the weight of the evidence, 2) irregularity, and 3) error of law.

Weight of Evidence

As discussed immediately above, pat's evidence tends to establish breach and causation while Deftman's evidence does not refute damages. A trial judge may weigh the evidence when considering a motion for new trial. The trial judge also has wide discretion in deciding whether or not to grant the motion (Aetna v. Yeatts). The weight of the evidence suggests breach and causation (no other route to market the film in foreign countries). It is reasonable to assume the movie would have made some money, especially when the previous 2 Austin Power's were "smashing" successes. The trial judge should grant the motion based on the weight of the evidence.

Granting a new trial would not offend the 7th Amendment because new trials are a common-law manner of review of facts determined b a jury.

Irregularity

It is possible that Ms. Wawa's speculative comment that "‘Part III' of the Austin Power's is a third-rate film" had a prejudicial effect on the jury. After all, Ms. Wawa is an expert and her opinion may be given great deference. The comment was uncalled for and potentially devastating to Pat's claim FRE 702 suggests this may have been allowable even though.

Error of Law

This would come into play if Jane Doe was used as a trial expert by Deftman. In that case Pat should have been allowed to depose her. The facts indicate both parties had testimony from "their respective legal malpractice experts." If one of these were Jane Doe's the trial judge committed prejudicial legal error in not allowing Pat to take her deposition.


CIVIL PROCEDURE II .................................................................................... PROF. SLOMANSON
FINAL EXAMINATION .....................................................................................
SPRING 2000
...................................

TABLE OF CONTENTS ..................................................................................................... 1

FILE
Memorandum from Janet Kenney (Instructions) ....................................................................... 2

Police Report/Criminal Verdict Form ....................................................................................... 3

Civil Complaint/Answer........... ................................................................................................ 4

Motion for Partial Summary Judgment ...................................................................................... 5

Opposition/Motion to Dismiss .................................................................................................. 5

Discovery Motion/Opposition to Discovery .............................................................................. 6

Arbitration Order/Request for Appellate Review ....................................................................... 7

Trial Testimony of Various Witnesses ........................................................................................ 8

Civil Verdict Form/Motion for New Trial ................................................................................... 9

LIBRARY
Statutes/Cases/Rules ............................................................................................................... 10–11
.................................................................................Page 1 of 11

 

 .................................................................................FILE

......................................................Memorandum from Janet Kenney

Our law firm is interested in hiring you. We administer a modified version of the Multistate Performance Test
to help us in our selection process. Assume that our firm has been retained to represent a gentleman named
William Reed. William witnessed a robbery, got into a fight with the robber, and has retained us to review the
trial record for the purpose of determining whether either party can successfully attack any of the decisions
made in the hypothetical case which follows.

This problem is set in the fictional State of Columbia, a State of the United States. The Southern District of
Columbia is a federal district court in Columbia. The federal Court of Appeals for the Fifteenth Circuit hears
appeals from the Southern District and issues opinions on applicable law.

You will have two sets of materials with which to work: (1) the File (p.2-9); and (2) the Library (p.10-11).
The File contains factual information about this hypothetical case, including documents filed with the court.
The Library contains Statutes, Cases, and Rules which may be relevant to the issues presented. Your answer
should be based on your general knowledge of the law, supplemented by any relevant information contained in the File and Library.

We recommend that you spend between forty-five minutes and one hour reading and digesting the facts. You
should read the entire File and Library before beginning to write your answer. They will help you to formulate
your arguments, although not everything therein is necessarily useable (as is the case in the actual practice of law). In some instances, there may be only one appropriate answer/conclusion.

You should assume the following:
• the cases and other resources in the attached File and Library accurately state the law;
• the documents in this exercise are admissible under the applicable rules of evidence;
• all motions are denied by the federal trial judge.

The firm would like you to spend the next three hours doing the following:
• Discuss the correctness of the trial court motion denials and provide your reasons. Note that
...there are two suits. Your analysis should begin with the impact of the first suit, which is now
...final, on the second suit.
• We would also like your perspective on whether the judge's arbitration order–presented below
...in the File–violates the U.S. Constitution, and whether it may be reviewed by the 15th Circuit
...prior to final judgment.

Finally, we are looking forward to your joining our firm. We thus appreciate your "going through the motions"
associated with this step in our interviewing process.

Janet Kenney,
Managing Partner
................................................................................Page 2 of 11

...............................................Police Report: Tim Badden Investigation

 Reporting Officer
....William Calley

... I.D. #
...1584

.......Division
..........F9

.. Approved by
..Joseph Medina .......#368

.. Date of Report
.........6/1/99

.... Time
.....2150

 

 STATEMENT OF WILLIAM REED (WITNESS)
William said that he was about to walk into Stump's supermarket with his daughter Christina, when the suspect entered just ahead of him, and then proceeded from the west entrance toward the cash register nearest the east door. There was something strange about the suspect. William instinctively knew that this was going to be a robbery. William, after directing his daughter Christina back to the car in the parking lot, immediately called 911 from the payphone just outside the west entry to the store.

William observed the suspect pull out a gun, point it at the back/side of Jason's (McTavish) head, and then run out the west door. William then tackled the suspect thereby bringing him to the ground. A fight ensued, during which William and the suspect exchanged blows. William said that the suspect stated, while running away, that "When I see you again, and I will, I will kill you and the little hooker you were with" (referring to Christina).

The suspect then ran off toward Madra Avenue. William, who said he did not wish to "do something else stupid," returned to the vicinity of the outside payphone. Police Helo #954 and Squad Cars 3150 and 2745 arrived approximately two to three minutes later.
------------------------------------------------------------------------------------------------------

....Columbia Criminal Verdict Form/Judgment
PEOPLE v. TIM BADDEN, formerly residing in Newark, NJ
......................Crim. Case No. 99-1111

CHARGE #1: ROBBERY OF EMPLOYEE JASON McTAVISH
We, the jury, find as follows: Defendant Tim Badden is guilty as charged.

CHARGE #2: ASSAULT ON WITNESS WILLIAM REED
We, the jury, find as follows: Defendant Tim Badden is guilty as charged.

CHARGE #3: BATTERY OF WITNESS WILLIAM REED
We, the jury, find as follows: Defendant Tim Badden is guilty as charged.

SENTENCE/JUDGMENT: Life, without possibility of parol
–pursuant to Columbia's Three-Strikes Sentencing Guidelines

...............................................................................Page 3 of 11


......................................................................Civil Complaint

William Reed, Plaintiff.. )
...............v..................... )
Tim Badden, Defendant )

............ United States District Court for the
...............Southern District of Columbia
.........Civil action, File Number 654321-AMB
.........................COMPLAINT

  1. Plaintiff is a citizen of the State of Columbia. Defendant, although serving a life prison sentence in Columbia, is a citizen of his original domicile in the State of New Jersey.

2. Defendant, on or about June 1, 1999, robbed Stump's Supermarket in the Del Cerro area of Columbia. When exiting the market, plaintiff encountered Badden, who was engaged in the commission of a robbery. Without provocation, Badden then assaulted and battered the plaintiff, as previously determined in the criminal trial of this event. See attached Police Report (File). Although the plaintiff was not hospitalized, nor treated by a doctor, the defendant nevertheless thereby induced great stress as plaintiff Reed was attempting to foil the defendant's robbery of Stump's market. The defendant stated that he would kill the plaintiff, and his daughter, if the defendant ever saw either of them again.

3. Wherefore, plaintiff demands judgment against defendant for general money damages, plus specific costs and interest, in the combined amount of $80,000.00.
.............................................................................................. Signed: Jack McDonald State Bar # 61348
.......................................................................................................... Dewey, Cheatem & Howe
.......................................................................................................... Attorneys for Plaintiff

.............................................................................Answer

William Reed, Plaintiff.. )
..................v. ............. .. )
Tim Badden, Defendant )

 ...........United States District Court for the
...............Southern District of Columbia
.........Civil action, File Number 654321-AMB
.............................ANSWER

 ..................................................................General/Special Denial
Defendant admits the robbery, which is alleged in plaintiff's complaint. The defendant denies, however, each and every other allegation contained in the plaintiff's civil complaint.

...................................................................Affirmative Defense #1
The plaintiff is barred from relitigating this claim because of a prior action: People v. Tim Badden, Crim. Case No. 99-1111. See attached Verdict (File).

...................................................................Affirmative Defense #2
This court does not possess the subject matter jurisdiction to hear this type of case. 28 U.S.C. § 1332 (Library).
.......................................................................................................Signed: Jill Hill State Bar # 77755
...................................................................................................................Last, Only & Chance
..................................................................................................................Attorneys for Defendant

...............................................................Page 4 of 11

.............................................................................
...............................................
Motion for Partial Summary Judgment

William Reed, Plaintiff.. )
...................................... )
...................v. ............ .. )
...................................... )
Tim Badden, Defendant )

........... United States District Court for the
................Southern District of Columbia
.........Civil action, File Number 654321-AMB
...............PLAINTIFF's MOTION for
..........PARTIAL SUMMARY JUDGMENT

  Plaintiff William Reed hereby moves this court for a partial summary judgment, under Rule 56 of the Federal Rules of Civil Procedure.

.....................................................Plaintiff's Supporting Points & Authorities
1. A party may seek summary judgment on all, or a part, of a claim or defense. FRCP 56. This plaintiff may move for partial summary judgment, because there is a judgment which previously resolved a claim or issue which may not be relitigated in this subsequent action.

2. There was a prior criminal action involving these same parties. See attached Criminal Judgment, Case Number 99-1111, and Officer Calley's Police Report (File). These affidavits, together with the pleadings in this case, establish that defendant Badden: (a) assaulted, (b) battered, and (c) caused great emotional distress to the person of plaintiff Reed. In this subsequent civil action, plaintiff need only establish damages at the time of trial for each of these three tort claims.

..........................................Opposition to Summary Judgment Motion

William Reed, Plaintiff ..)
...................................... )
.................v. .............. .. )
...................................... )
Tim Badden, Defendant )

 .................United States District Court for the
.....................Southern District of Columbia
.............Civil action, File Number 654321-AMB
......DEFENDANT's OPPOSITION TO SUMMARY ..JUDGMENT & MOTION TO DISMISS COMPLAINT

 ..........................................Defendant's Opposing Points and Authorities
1. The plaintiff cannot rely on the prior criminal case to foreclose the defendant from his day in court on all issues and claims raised in the civil Complaint–for two reasons. First, plaintiff Reed has already had his day in court regarding this claim for assault and battery. Reed may not relitigate this same claim a second time. Alternatively, should the court disagree, Reed cannot preclude defendant Badden from fully litigating defendant Badden's alleged liability for assault, battery, and emotional distress.

2. Reed's case should be dismissed. The court does not have subject matter jurisdiction (SMJ). 28 USC § 1332. The plaintiff has not presented a case within the Diversity SMJ of this court. Thus, the facts, pleadings, and other documents in this case (File) demonstrate that William's case cannot proceed.

............................................................................Page 5 of 11

......................................................................Discovery Motion

William Reed, Plaintiff ..)
.......................................)
..................v.................. )
.......................................)
Tim Badden, Defendant )

 ...............United States District Court for the
...................Southern District of Columbia
.............Civil action, File Number 654321-AMB
...................DEFENDANT's MOTION for
...............PSYCHIATRIC EXAMINATION

  Defendant Tim Badden hereby moves the court for an order requiring plaintiff William Reed to submit to a psychiatric examination. This examination will enable the defendant to determine the degree of stress which plaintiff actually suffered.

...................................Defense Counsel's Declaration in Support of Examination Motion
1. I am the lawyer for defendant Tim Badden.
2. The parties satisfied their "Meet and Confer" requirement, but the plaintiff would not agree to the defendant's request for an independent medical examination of the plaintiff before the trial of this action.
3. Federal discovery is designed to ensure the mutual exchange of relevant facts, so that all parties will be fully informed and that there will be no surprises at the time of trial. A pre-trial psychiatric examination is thus needed, pursuant to Rule 35 of the Federal Rules of Civil Procedure, so that the defendant will have access to the plaintiff's mental condition.
4. This single examination, by a qualified practitioner, would last no more than one day.

......................................................................Opposition to Discovery

William Reed, Plaintiff ..)
.......................................)
...............v..................... )
.......................................)
Tim Badden, Defendant )

.............. United States District Court for the
....................Southern District of Columbia
...........Civil action, File Number 654321-AMB
.................PLAINTIFF's OPPOSITION to
.....................DISCOVERY MOTION

  1. The defendant's motion is frivolous. Plaintiff is seeking damages for the stress which unquestionably arose out of the facts spawned by Tim Badden's robbery–for which this defendant was convicted for harming this plaintiff. Plaintiff's daughter was also in the vicinity, which added to the stress which the plaintiff experienced at the hands of the defendant. Thus, there is no need to evaluate whether plaintiff was actually harmed by the defendant. This harm is obvious and speaks for itself.

2. Further, if the court were to grant this motion, the plaintiff is entitled to a more complete description of the circumstances of the proposed examination.


............................................................................Page 6 of 11

...............................................................Judge's Arbitration Order

 William Reed, Plaintiff ..)
........................................)
...............v...................... )
........................................)
Tim Badden, Defendant. )

 ............United States District Court for the
................Southern District of Columbia
.........Civil action, File Number 654321-AMB
..................ARBITRATION ORDER

  1. Pursuant to the authority vested in the trial judges of this district, a trial judge may order a general civil case to arbitration, for all cases where the amount in controversy is valued at less than $100,000.00. Local ADR Rule 13.6.

2. I am thus ordering this case to be arbitrated, because Reed v. Badden fits within the alternative dispute resolution guidelines established for this federal district. Local ADR Rule 13.7.

.................................Signed by: Eric Hoffman
................................. Department #10

...............................................................Request for Appellate Review

 William Reed, Plaintiff ..)
........................................)
...............v...................... )
........................................)
Tim Badden, Defendant .)

 ........Filed in: United States District Court for the
............Southern District of Columbia and the
...............Fifteenth Circuit Court of Appeals
...........Civil Action, File Number 654321-AMB
....................APPELLATE REVIEW

  Plaintiff William Reed herein seeks review of the trial court's arbitration order, in the above-referenced case, on the following grounds:

1. The required arbitration of this case violates plaintiff's right to jury trial, as guaranteed under the United States Constitution, Amend. VII.

2. The trial judge's order is too important to be denied immediate review. Plaintiff thus seeks review under any available basis for federal appellate review, prior to final judgment. Only then can this case proceed to a judgment which would not offend the Constitution of the United States.

............................................................................Page 7 of 11


......
Trial Testimony (arbitration did not finally dispose of this case & 15th Cir. declined review)

Direct Examination of Plaintiff William Reed (by plaintiff's trial counsel):
[William's testimony was essentially the same as Complaint and Police Report in File.]

Direct Examination of Witness Christina Reed (by plaintiff's counsel):
Q: What is your name?
A: Christina Reed.
Q: Were you with your father, William Reed, on the day of the robbery?
A: Yes.
Q: How old were you at the time of the robbery?
A: 13.
Q: What happened that night?
A: As the robber came out of the store, my Dad tried to stop him. The robber no longer had his gun out, I guess ‘cause he was about to boogaloo down Broadway–sorry, I mean run away. Dad yelled at the robber, who then said something I can't repeat. My dad then tackled this dude. He then pushed my dad away and ran off. I think he tried to hurt my father.

Cross Examination of Christina (by defense counsel)
Q: Did your father go to the hospital?
A: No.
Q: Did he go to a doctor because of what then happened?
A: No.
Q: Was your dad "ok" the next day?
Objection by plaintiff's counsel: Calls for opinion and speculation. Objection sustained.
Q: Did your Dad return to work the next day?
A: Yes, I'm pretty sure he did–loves his students–never misses work.
[No further questions by defense counsel.]

Direct Examination of Jason McTavish (by plaintiff's counsel):
Q: What is your name and occupation?
A: Jason McTavish. I work at Stump's Supermarket in Del Cerro, in the State of Columbia.
*** [Jason describes robbery.]

Cross Examination of Jason McTavish (by defendant's counsel):
Q: If you saw Mr. Reed, after the robber left the store, what did Mr. Reed do?
A: I saw him tackle the robber, who apparently did not see Mr. Reed lurking in the shadows. Mr. Reed began to threaten the robber. Reed was acting like a real jerk–or maybe it wasn't an act. Reed appeared to be trying to impress his teenage daughter. The robber could have shot anyone in, or around, the store.
Q: Did Mr. Reed get hurt?
A: Not that I could see. In fact, it seemed to me that Reed hurt the robber.
[No further questions by either counsel.]


............................................................................Page 8 of 11

....................................................................Civil Verdict Form

William Reed v. Tim Badden
Civil File Number 654321-AMB

WE, THE JURY, FIND FOR:

Defendant, Tim Badden.

..........................................Plaintiff's Motion for New Trial

 William Reed, Plaintiff ..)
........................................)
...............v...................... )
........................................)
Tim Badden, Defendant .)

 ............United States District Court for the
.................Southern District of Columbia
.........Civil action, File Number 654321-AMB
...............MOTION FOR NEW TRIAL

  Plaintiff hereby moves the court for an order granting the plaintiff a new trial.

Points and Authorities in Support of Motion
1. No reasonable jury could have held for the defendant in this case.

2. The trial evidence establishes that this jury arrived at its result based on passion and prejudice. Given the plaintiff's heroic efforts to capture the robber, no reasonable jury could have found for the defendant on the facts of this case, unless its members were sympathetic to all criminals in general.

3. Thus, the judge has the power, and in this case the duty, to effectively preserve the right to jury trial by ordering that a new jury retry this case to achieve a just result. The trial evidence was therefore insufficient to arrive at a defense verdict.

............................................................................Page 9 of 11

...........................................................................LIBRARY

STATUTES:
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 USC § 1331.

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the
sum or value of $75,000.00, exclusive of interests and costs, and is between–
.....(1) citizens of different states ***.

[W]here the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000.00 *** the district court may deny costs to the plaintiff, and in addition, may impose costs on the plaintiff. 28 USC § 1332(a), (b).

..CASES:
..
Case #1–Res v. Coll

 ...................................................................Res v. Coll
.....................................................41 F.3d 862 (15th Cir., 1999)

Shazbat, J.
We herein resolve an issue which has plagued lawyers and judges for some time: What is the effect of a prior judgment on a subsequent case, when one is civil and the other criminal?

We commence our analysis with two preliminary propositions of "hornbook" law. First, the impact of res judicata and collateral estoppel generally depends on the facts–and not whether the two cases are, respectively state or federal in nature. Second, the fact that the prosecutor is effectively representing the people at large does not preclude an individual crime victim from seeking money damages in a civil case based on the same general set of facts. Thus, there would be no res judicata implications for a person who chooses to proceed with his or her own civil case, regardless of which case first proceeds to judgment.

Regarding the precise issue in this litigation, when the prior civil case involves the same facts and then proceeds to judgment, it does so with a lesser burden of proof than in a criminal case. Civil judgments are normally predicated on the familiar "preponderance of the evidence" standard. There would thus be no estoppel in a subsequent criminal case, where the burden of proof is "beyond a reasonable doubt." In the reverse scenario however, where a case which is predicated on the same set of facts is first resolved in the criminal courts, that judgment may estop a guilty defendant from relitigating the identical issue.
***
Kozinski, A. and Nelson, D. concur.

............................................................................Page 10 of 11


..Case #2–Tate v. Manson

 ................................................................Tate v. Manson
....................................................211 F.2nd 814 (15th Cir., 1988)

*** Having said that, we now turn to a brief restatement of the substantive law of Columbia involving two related but distinct types of "stress" claims. One is the claim wherein a plaintiff seeks redress for the stress routinely associated with general pain and suffering. The other is the specific stress associated with claims for negligent, or intentional, infliction of emotional distress.
In the former, civil plaintiffs routinely seek compensation for a variety of circumstances recoverable as general pain and suffering. This form of stress need not be pled, in order to be included in the verdict's indiscriminate damages, because this form of stress is naturally spawned by the type of conduct generally alleged in the complaint.
Not all civil plaintiffs seeking damages for actionable conduct, however, seek recovery for the stress associated with the unreasonable or intentional conduct resulting in a cause of action for emotional distress. In these cases, plaintiffs must make it crystal clear that they are seeking damages based on conduct which is distinct from some other claim or theory within the general scope of their complaint. Of course a plaintiff may, at any reasonable point during the discovery stage, establish that he or she is suing for emotional distress without having to amend the complaint. However, a mere allegation of "stress" in the complaint does not bootstrap the tort of emotional distress into the proceedings at trial.

 

 RULES:
Federal Rules of Civil Procedure–
When the mental or physical condition *** of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination ***. The order *** shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. FRCP 35(a).

Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefore in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue ***. Such demand may be indorsed upon a pleading of the party. FRCP 38(b).

Local Rules of Court–
Judges of this district, pursuant to the authority vested in the district courts by statute, may submit cases to arbitration which are general civil cases (GCC). A GCC is one which the trial judge evaluates as being capable of returning a jury verdict of up to $100,000.00. ADR Rule 13.6.

When arbitration is so ordered, either party may subsequently seek trial de novo, as if there had been no arbitration. Such cases will be reinstated on this District's Civil Active List. A party thus retains the right to a jury trial, assuming that it has been timely demanded. ADR Rule 13.7.

............................................................................Page 11 of 11

 

 ...................................................Prof's Issue Outline (Spring 2000)

PLAINTIFF'S SUMMARY JUDGMENT MOTION (CE)
* SJM = basis for testing P's claimed S1 preclusion/D's aff defense
* Not RJ b/c diff Ps/coas (People in crim case, then individual plaintiff in civil case)
* P's asserting offensive C/E = identical issue, actually litgated, & nec to S1 jmt
* Issue: What's effect when S1 = criminal & S2 = civil?
* Assault & battery = CE, b/c higher burden proof in previous crim trial (Res v. Coll)
* Crim verdict necessarily litigated same facts re D's assault and battery (Complaint)
* Verdict form (File) says D guilty of assault & battery on same facts
* Not matter if S1 = state & S2 = federal (Res v. Coll)
* P cannot claim CE for emo dist b/c not decided in S1 crim trial (Verdict Form)

DEFENDANT'S OPPOSITION TO SUMMARY JUDGMENT (RJ & SMJ)
Res Judicta
* P "already had his day in court" & "cannot relitigate this same claim"
* The P in S1 = "The People" but the P in S2 = William as an individual (per classroom hypo)
* Res v. Coll (see Library) "prosecutor...representing the people...not preclude individual
crime victim from seeking money damages ... based on the same general set of facts."
Jurisdiction
* Issue: Domicile elements (individual's presence & intent)
* 1332 Library -> P (Columbia) alleged § 1332 SMJ & D's original domicile (New Jersey)
* Verdict Form (File) -> "Formerly residing in New Jersey"
* Issue: how does D's life-long incarceration impact D's domicile?
* Hinges on D's "intent to remain for an indefinite period"
* Issue: Minimum amount on controversy met?
* "interest and costs" cannot be included, per § 1332 (File)
* Complaint says P "not hospitalized, nor treated by a doctor" (File)
* Trial testimony (File)–SMJ never waived:
* Christina's testimony = Dad returned to work next day (75k+?)
* Jason's testimony = Reed not apparently hurt (Reed, instead, appeared to hurt robber)

DEFENDANT'S PSYCHIATRIC DISCOVERY MOTION (Contro & Cause?)
Controversy element:
* P apparently seeking damages for emotional distress (@ & partial SJ aff)
* "distress" mentioned in complaint, but no express claim for this tort
* Two types of "stress"->gen pain & suff v. "crystal clear" in @ Tate v. Manson (Library)
* P may, at some point during discovery, establish suit's also for tort of emo dist (Tate)
* P's motion for partial summ jmt & opposition to dismissal both expressly claim "emo dist"

Good cause element
* FRCP 35 (Library) "shall specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made"
* D merely says (lawyer's affidavit) "qualified practitioner" -> too incomplete FRCP 35a
* D also says "no more than one day" -> possible eight hours, w/o explanation of length

TRIAL JUDGE'S ARBITRATION ORDER (Rt Jury & Appealability)
Right to Jury
* Money damages = case for which rt attaches b/c "at law" (7th Amend.)
* case < 100k b/c @ seeks only 80k
* after arbitration, "any party may subsequently seek trial de novo"
& parties "thus retain right to a jury trial" Local ADR Rule 13.7
* Arbitration order did not deprive P of the right to jury trial for $ damages
* Waiver/Library ->"party thus retains the right to a jury trial, assuming timely demand."
Local ADR Rule 13.7.
* "Such demand may be indorsed upon a pleading of a party." FRCP 38(b)
* Not in complaint, thus waived (absent some other timely document not given in facts)

Appellate SMJ
* Black letter/policy discussion/nonapplicable bases (any one = credit)
* Collateral order application
* 1292b interlocutory appeal
* Writ route (if extraordinary)

PLAINTIFF'S NEW TRIAL MOTION (NT & Trial Evidence)
* Prejudicial error / judge may weigh the evidence of both sides
* "No reasonable jury could have held for the D" attacks sufficiency the evidence
(common denominator for Motion for Judgment & Motion for New Trial)
Trial testimony (evid suff?):
* Christina (D's cross-exam)–Dad not hurt / went to work next day (never misses work)
* Jason (D's cross exam)–"jerk;" trying to impress daughter; P probably hurt D!
* P's evid = @ & Police Report ...