Trying Complex Cases
- Pretrial Conf's
- Sched. things
- Then final pretrial conf. rt. before trial 2
plan facilitation of evid.
- Pretrial Order
- Claims & defenses
- Findings of fact & law / jury instructions
- Pretrial Order Modification
- Only 2 prevent manifest injustice
- Low threshold 4 most pretrial orders but high
4 final one
- No Trial by Ambush / Surprise
- Rt. 2 Jury: 7th Amend.
- Two Part Test 2 Det. Rt 2 Jury
- Premerger custom
- Types of remedy sought is legal / not
- Quest'able on Complexity Exception
- Techniques 2 Help Jury
- Visual Aids
- Video presentation of depo. testi.'s
- Charts, etc.
- Controv. if 1 party has lots $ 2 spend on visual
- Pre-Recorded Video Tape Trial (PRVTT)
- Pre-record all testi. & play 2 jury
- Controv. b/c edit & narrate 2 present testi.
- Pre-trial Tutorial
- Neutral party / experts ed. jury on gen. things
- Evid. Summaries
- Help jury 2 see big picture & how evid. fits
- Juror Notebks
- Notebk's of live pleadings, evid. copies, etc.
- Mounted Pictures of W's
- Jury Notetaking
- Common but some states prohibit
- Dang. if substitute notes 4 evid. when delib.
- Jury Quest'ing of W's
- Write quest's, handed 2 judge after, & judge
screens 2 ask few quest.
- Interim Arg. by Atty's
- Limited Trial Duration
- Rule 16)c)15 allows ability 2 limit X allowed
- Dir. Testi. by Narrative / Affidavit
- Ok 4 bench trial but not 4 jury trial
- Sep. Trials
- Rule 42)b
- Cts may sep. trials 2 further conv. / avoid prejud.
- For any claim, cross claim, counter claim / sep.
- Preserve rt. of trial by jury
- Liab. & damages /
- Aff. defenses
- Distinct issues so
- Trial alone won't cause injustice
- Atty & judge will know
- Dif. evid. 4 each trial
- Inconsistent verdicts
- P can't present fairly the entire case
- Statistics 4 Trial
- Stat. Sampling 4 Large Cases
- Sample must B randomly selected of suff. size
2 achieve stat. sig. of desired result of confid. level
- Stat. award theoretically more accurate than
- D /P arg. that need 1 on 1 adversarial trial
- S /P arg. that when judges extrapolate, they
- Use of stat. is non-merit based
- Erie arg. that change subst. law by proced. change
Preclusive Effect of Jgmt
Claim Precl. / Res Judicata (EXAM)
- Jgmt in Prior Lawsuit Bars Relitig. in
- Claim in suits is same
- Party against whom claim precl. is asserted was
party / in privity w/party 2 prior suit
- Jgmt is final &
- Jgmt was on the merits
- Def'ing Claims in Suit
- Fn. of how ct. def's claims 4 jxn, pleadings,
- Fed sys. def. broadly 4 broad claim precl.
- Three approaches
- C /L writ approach where claim was rt. in partic.
- Legal theory approach where can't relitig. same
- Trxn'al / modern approach
- Claim is all rts 2 relief / defense arising from
single trxn / occurrence / series of trxns / occurrences
- Must bring everything from 1 trxn in 1 case /
barred later even if didn't raise C/A
- Subj. in det'ing trxn
- Def'ing Party / In Privity
- Formal party who appeared before
- Party in privity if ct. det's has suff. rel.
2 party in 1st case
- D /P Const'al limit in def'ing privity
- Rel's suff. 2 B privity
- Successor of int. in prop.
- Nonparty controls prior litig.
- Had effective choice 2 legal theories &
- Had opp. 2 rev. & appeal
- Nonparty's legal int. was adeq'ly rep'ed
- Govt sued before, priv. party subseq'ly barred
unless distinct legal int. / rt. 2 relief wasn't avail. in 1st
- Claim Precl. Effect
- Choice of Law 4 Privity / Claim Precl. Det.
- Gov'ed by law that issued jgmt before
- State Jgmt Against Excl. Fed. Claim
- State jgmt in class axn releasing excl. fed.
jxn claims subj. 2 claim precl.
- Applic. of § 1738 2 give FFCC of state jgmts
- Arg. that jgmts subj. 2 collateral attack on
- Inadeq. rep.
- No notice
- No ability 2 opt out /
- No opp. 2 B heard
- Class Jgmt & Indiv. Jgmt
- If find class pattern of discrim., creates presumption
of indiv. discrim.
- If find no class pattern, not create presumption
of indiv. discrim.
- If find indiv. discrim., not create presumption
of pattern / pract.
Issue Precl. / Collateral Estoppel
- Bars Relitig. of Issues
- Dif. From Claim Precl.
- Claim precl. bars entire claim / defense but
issue precl. bars partic. issue
- Claim precl. could bar C/A's not brought up but
issue precl. bars only issues litig'ed & det'ed
- Issue is id'al
- Formal test req'ed parties B same / in privity
- Issue was actually litig.'ed & det'ed by
valid & final jgmt &
- Det. was essential 2 prior ct's jgmt
- Mutuality Concepts & Issue Precl.
- Parties in both cases R same / in privity
- Defensive Nonmutual Collateral Estoppel
- Different D's but same P & D asserts issue
precl. on issue P lost before
- No need 2 B same party / in privity
- Not viol. D/P b/c P had opp. 2 litig.
- Offensive Nonmutual Collateral Estoppel
- Different P's but same D & P asserts issue
precl. on issue D lost before
- Not viol. D/P but concern on
- P taking wait & see attitude
- Potential unfairness 2 D's
- P could've joined
- First case minor
- Other suits unforeseen
- Jgmts inconsistent w/prior jgmt
- New proced. opp's in 2nd case
- Nonmutual & No Collateral Estoppel
- If same party asserts issue precl. against different
party, no issue precl.
- Factors in Finding Collateral Estoppel
- Ct's Attitude
- Clarity of Issues
- Assume Jud'al Prcg Competent 2 Prod. Correct
- Inconsistency in Issue, Not Inconsistency in
This material is copyrighted by the author. Use of the material
for profit is expressly prohibited without the written
permission from the author.
Ms. Haeji Hong
May 4, 1998
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