CIVIL PROCEDURE OUTLINE

RULE 8 PLEADINGS

PLEADINGS Formal Documents: 1) Complaint 2) Answer 3) Possible Response Notice Pleading

o Generally: No detailed fact or legal theories required “not require a claimant to set out in detail the facts up which he bases his

claim” Conley v. Gibsono Purpose: to give fair notice to D, focus less on form and more on merits/substance

Make a complaint the starting point, instead of trying to get complaint “just right” keep the case moving instead…” Bennet v. Schmidt

o Rationale: Nothing so intrinsic about form that warrants block a meritorious claimo Consequence: less specific, simplified pleading process that allows virtually all

claims to be heard Heightened Pleading Standard

o Bell Atlantic v. Twombley how much info you must give to survive 12(b)(6) is still not a clear issue “We require only enough facts to state a claim to relief that is plausible on

its face”o Ashcroft v. Iqbal

Court’s assumption that all “facts are true” only works for facts, not legal conclusions in a pleading

TEXTUAL 8(a) If any of the pleadings states a claim for relief it must include: (1) statement of

jurisdiction unless already established; (2) short, plain statement show entitlement to relief; (3) demand for relief sought

o A complaint is rarely thrown out because it is too long or poorly written. Bennett v. Schmidt

o Lawyers avoid giving too many details or accurate details to avoid pleading themselves out of court

o Looks at “face of complaint” and asks, “if the plaintiff proved everything alleged, would he/she win?”

Rule 8(e)(2) allows stating as many separate claims/defenses as you want, even if they conflict.

o Careful: to avoid getting hit by Rule 11, the lawyer cannot have definitive evidence which indicates that one theory is false

CONSEQUENCES P friendly rule because so broad (almost no filter), although P cannot win at this point, D

can get 12(b)(6) dismissal give economic leverage to P because it costs almost nothing to file but expensive

for D to defend Phase meant to be brief, give way to discovery quickly

PURPOSE1. give fair notice of the nature of the claim (who, where & why) for D, so they can prepare

a defense2. state relevant facts/tell a version of the events

3. narrow the issues and clarify what’s in dispute4. serve as gatekeeper to discovery; prevent the huge burden of discovery in unwarranted

lawsuitsa. expose insubstantial claims, non-meritorious cases

5. Separate factual from legal issues so that cases presenting only legal issues can be handled without trial (summary decision/judgment, for example).

RULE 12 DEFENSES AND OBJECTIONS TO PLEADINGS

OVERVIEW Complaint does not need a legal theory, but if a defendant comes asking then you need to

be ready to supply one Complaints more often dismissed over 12(b)(6) than 8(a)(2) sometimes because new

cases on the frontier of law Answer responds to each element in a Complaint (admit, deny, insufficient info). Include

an Defenses intended to be used at trial (this can be amended later)o General denial of ALL elements of complaint –in good faith ONLYo Failure to deny is the same as if D had admitted the element

Complaints should only be dismissed if “it appears beyond a doubt that P can prove no set of facts… which would entitle him to relief” Conley v. Gibson

Motions to Dismisso Dismissal Granted: P can amend the pleading and continue action OR allow

judgment and appeal insteado Dismissal Denied: D can either answer the complaint OR allow default judgment

and appeal

TEXTUAL 12(b)(1-7) Pre-Answer Motion to Dismiss: The following defenses can be asserted by

motion (before providing the answer pleading):o Lack of Subject Matter Jurisdiction (case belongs in state court, not fed

court)o Lack of Personal Jurisdiction (court has no power over me)o Improper Venue (convenience)o Failure to State a Claim upon which Relief can be Granted (dismissal as a

matter of law) Dismissal if claim for relief fails to assert either a legal theory of recovery

that is cognizable at law or fails to allege facts sufficient to support a cognizable claim (Kirksey v. RJ Reynolds Tobacco Co)

Courts assume all well-pleaded facts of the complaint as TRUE and resolve all doubts and inferences in P’s favor (in light most favorable to P)

[PURPOSE] Even before facts are discovered, the legal theory can be settled Determine early if there is legal basis for complaint, otherwise avoid

expensive discovery Failure to Join a Party under Rule 19 (failure to join a necessary or

indispensable party) 12(d) Courts may consider only allegations in the complaint and exhibits attached. If

matter outside pleadings is considered (such as affidavits) then the motion must be treated as SJ and all parties giving an opportunity to present all material information for court’s consideration

12(g), (h) Objections under 12(b)(2-5) are forever waived after pleadings are complete

UNLESS you brought a pre-answer motion OR put the objection in your answer OR are allowed to amend your answer to include it under Rule 15(a)(1). – Basically, bring all your motions early or don’t bring them at all.

[FORK] The cost of failing to do this is to forever lose your ability later on – harsh penalty/efficiency

[PURPOSE] Efficiency reasoning: in law if you have a complaint bring it up as soon as possible to avoid waste of time and effort

[FORK] 12(b)(1, 6, 7) are treated differently – why? 2-5 These are provisions for the individual, protections the law offers but

does not require for D, so if you chose to waive them the court doesn’t care 1, 6, 7 – These involve issues that have a bearing on the court and public

interest so we don’t let you waive them. That means, even if D’s lawyer is dumb enough to forget to object, the judge can object Sua Sponte. It is a balance between efficiency and the public interest (of not hearing cases in wrong court, etc)

RULE 13,14 JOINDERS – MULTIPLE PARTIES

TEXTUAL Compulsory Counterclaim (Rule 13(a-b)): If A sues B then B “must” bring (as a

“counterclaim”) any claims he has against A arising from the same transaction. If claims are not brought they are forfeited forever (in both state and fed court).

o “same transaction” – an ambiguous phrase – can argue based on purpose: [Purpose] Harsh Penalty vs. Efficiency & Convenience

Avoid waste, duplicating effort by judge and juries, paying lawyers twice, etc.

Convenient for fact-finder to consider a single real-world evento Exceptions 13(a)(1)(B)

Not compulsory if the court doesn’t have jurisdiction over that new party If D has already asserted the claim by the time she is being sued, not

compelled to reassert 13(f) - If party fails to assert counterclaim through oversight, inadvertence

or excusable neglect court can permit amendment if “justice so requires” – vague term can be argued over

Permissive Counterclaim 13(b): B has the OPTION (“may”) of bringing other claims he has against A that are unrelated to the main claim. If B chooses, claims can instead be brought in a later suit

o [Purpose] Allow B to choose a court more favorable to B’s interests, and not letting A dictate the terms of the suit B wants to bring

Cross Claims (Rule 13(g)): If A brings a suit against B and C they “may” also bring claims against each other, but they are not required to. However, if one brings a claim against the other then Compulsory Counterclaim is in effect and the other must bring any claims regarding that same transaction.

o [PURPOSE] We give them the option because A should not be able to dictate terms and location of the fight between B and C that doesn’t concern him – it is a balance between civil efficiency and respecting the autonomy of B and C to choose their own fight. Also, the gains in efficiency aren’t as big as with counterclaims.)

o Crossclaim must arise from the same transaction or occurrence as the original action or of a counterclaim

o Crossclaim – no affect on SOLo Can include assertion that the co-party may be liable for all or part f the claim

against the party asserting the crossclaimo [Purpose No-Hostility] rules never make you initiate hostility but once hostility is

started then all claims about issue must get resolvedo [GAME THEORY] Stag Hunt – Bring case 5 min before SOL to disallow

counterclaim. If this is allowable then people will sue out of fear the other one will sue them in this strategic way. Downside: it leads to more litigation with economic consequences. However, if both parties knew it wasn’t an issue they’d have no incentive to do this trick Reality: some courts allow this strategy, some don’t (using a “toll” – suspension of statute of limitations)

Third-party claims (“Impleader”) (Rule 14): D “may” bring in as a third party defendant one claimed by the D to be liable to him for all or part of the plaintiff's claim against the D. D may refrain from impleader and assert his claim instead in an independent action if he prefers. In order to satisfy FRCP 14(a), any liability of a third-party defendant must necessarily be secondary or derivative to the liability of the original defendant. If P’s claim against original D fails then secondary D is off the hook. If original D brings claim against secondary D then rule of compulsory counterclaim is in effect.

o Impleader: Shared responsibility (dragging someone else into a case saying they are responsible for all or part of the liability you incur)

o Judge reserves right to parse out a case to make it efficient and so jury isn’t overwhelmed

o 3rd Party Impleader Claim: Clock doesn’t start ticking on middle party to bring claim against 3rd party until middle party loses its claim (if it loses at all)

RES JUDICATA Res Judicata (claim preclusion) concerns will often practically require joinder, because if

a claim could be raised and is not, it will generally be subject to claim preclusion

RULE 15 AMENDED & SUPPLEMENTAL PLEADINGS

OVERVIEW The claims and/or opposing party can be amended, with certain restrictions Generally, the court should freely give leave to amend a pleading when justice so

requires (exceptions would be if the amendment would immediately be subject to dismissal under 12(b)(6))

Point of 15 is to determine if person will be disadvantaged by being brought in to the suit

AMENDING BEFORE TRIAL Freebie: One free amendment within 21 days after serving or being served with the

answer Otherwise: Written consent of opposing party or court’s leave (given freely when justice

requires) If your amendment requires a response, it must be made within 14 days (or remaining

time by other rules)

AMENDING DURING/AFTER TRIAL If there’s an objection that evidence is not within pleadings – courts should freely allow

amending + continuance If an issue not raised by the pleadings is tried (with implied consent) then courts should

allow amending. Failure to do so does not affect the result of the trial of that issue.

RELATION BACK OF AMENDMENTS Any amendments (claims/parties) made past the SOL date should be allowed if:

o SOL law allows ito Amendment asserts a claim that arose out of transaction set out in the original

pleading (or was attempted to be set out in the original pleading) Additionally, amendments to PARTIES made past SOL date should be allowed if:

o The new party received notice within 120 days after filing of the original complaint in such a way as to not be prejudiced in defending on the merits (examples?); AND

o The new party should have known the suit would have been brought against him if P didn’t make a mistake about the proper party’s identity

PURPOSE/STRATEGY Strategy of waiting until last second to Protecting two rights: 1) to not be sued after SOL 2) to not be notified 120 days after SOL

AMBIGUITIES “when justice so requires”

o Scenario: P discovers after SOL that D is the wrong party (despite admitting it in the Answer)

Letting D off: Means you cannot bring a suit against any other party, meritorious

claim lost Incentivizes people to be sloppy if they can get off the hook P is injured by relying on D’s answer sue D after dismissal for this

negligence Keeping D in:

A truly innocent party may bear the burden for a technicality (punished)

Harsh penalty teaches people to follow the rules – happens less often this way

“mistake concerning proper party’s identity”o Mistake can be interpreted as a “clerical mistake” or a “mistake in judgment”

If it is clerical (I put the wrong party’s name) – this is usually forgiven and allowed by courts

If it is a judgment mistake, courts tend not to like this: “Next Case”: Do we allow amendments so P can sue forgotten parties

with deeper pockets? This infringes on the rights of the big companies

RULE 56 SUMMARY JUDGMENT (SJ)

OVERVIEW Defined: a judgment rendered because no material issue of fact exists and one party is

entitled to a judgment as a matter of law

GENUINE ISSUE OF MATERIAL FACT SJ granted to a party if any evidence in the record (discovery/pleadings) show no genuine

issue of material facto “genuine dispute” – reasonable minds could differo “material fact” – a fact the case depends ono Can a reasonable jury decide the facts more than one way? (Bates v. Winn-Dixie

Supermarkets) SJ considers all evidence admissible at trial (preference for depositions [live] over

affidavits [crafted])o Affidavits must be based on personal knowledge (not hearsay)

Questions of FACT, INFERENCE DRAWING or CREDIBILITY go to a jury (Mickelson v. Babcock)

o If P has a “star witness” jury trial (or affects settlement amount)o Two pieces of material evidence in direct dispute jury trial

FAVORABLE LIGHT TO NON MOVANT In motion for SJ, the court assumes non-movant’s witnesses will all be believed and jury

will draw all reasonable inferences in non-movant’s favor. Exceptions include incredible testimony contrary to the laws of nature

PURPOSE/STRATEGY save public and private resources if case can only have 1 outcome

o Lawsuits spend a majority of time in Discovery, hopefully afterward you don’t need a trial

SJ FOR P SJ is usually reserved for D, however in rare exceptions it can be for P

o P can win in pure dispute of law (otherwise difficult because burden of proof at this point is 90%+)

o No evidentiary facts can be in dispute because even if P has all the evidence, a jury may not believe any of it and still rule in favor of D (who has no burden of proof)

o SJ is a bottleneck to compensate for big mouth funnel of people submitting complaints (hard to get trial cuz its easy to start a lawsuit)

REASONS TO USE SJ: Scenario 1: Collection of Evidence makes it clear that P has no legal basis for claim and

case must be dismissed (it survived 12(b)(6) because pleadings did not include enough information to dismiss)

Scenario 2: Does the evidence collected necessitate a ruling on facts, credibility, or inferences?

o If P has NO admissible evidence to support the complaint – SJ will be granted by D simply pointing this out – D does not have the burden to prove that P has no evidence. Celotex v. Catrett

Placing burden on D to prove P has no evidence would be very difficult and costly for D, how do you show proof that someone has no proof?

PARTIAL SJ

56(d)(1): SJ can be granted only on certain material facts that are not genuinely in dispute

56(d)(2): SJ can be granted on liability alone requiring a jury to only determine amount of damages

Pg 46 #1, 2, and 3 – good practice

TEXTUAL 56(d) If non-movant party does not yet have counter-evidence the court may: 1) defer

consideration; 2) deny; 3) allow necessary time; 4) anything else 56(f) Court can consider SJ on its own Sua Sponte 56(h) Affidavit in bad faith can lead to paying costs, attorneys fees, being held in

contempt and other sanctions

ISSUES

There are not many “interpretive” issues with this rule

RULE 50 JUDGMENT AS A MATTER OF LAW (JMOL)

OVERVIEW Defined: is a motion made by a party, during trial, claiming the opposing party has

insufficient evidence to reasonably support its case. JMOL may be made any time after evidence is presented but before the case is submitted

to the jury. If it will be brought at all, it MUST be brought before the case is submitted to the jury.

Difference [SJ and JMOL] – Timing & Evidence Used (admissible evidence in record v. evidence presented at trial)

Similarities [SJ and JMOL] – “a reasonably jury could only decide the case one way”o “If reasonable minds could differ as to the import of the evidence, however, a

verdict should not be directed” Anderson v. Liberty Lobby A judge is not suppose to consider credibility of witnesses, but to approach evidence the

same was as in SJ

TEXTUAL 50(a) Once a party has been fully heard on an issue at a jury trial the court may grant

JMOL against the party if there is insufficient evidence for a reasonable jury to find for that party (JMOL against the whole issue, or a piece of the issue). A party “may” (actually, must – cuz renewal) motion before the end of the trial

50(b) Within 28 days after either a judgment or jury discharge, the party can renew its motion for JMOL and at the same time the request for a New Trial under Rule 59. The court can allow or deny JMOL or New Trial.

50(c) If court decides for JMOL it must also rule conditionally on New Trial in case JMOL is overturned by appellate court. If it is not overturned the order for New Trial is ignored

50(e) If JMOL is denied, the winning party may assert grounds for a New Trial if JMOL denial is overruled

ISSUES Why would a verdict be renewed after a jury has already decided?

o Judgment before a jury decision would mean that if an appeals court reversed the judgment a new trial must take place. That is wasteful. Have a jury decision waiting that appeals court can default to.

There are not many “interpretive” issues in this rule

RULE 59 NEW TRIAL

OVERVIEW After losing judgment but before filing for an appeal motion for new trial Reasons for a new trial:

o Mistake Occurred: evidence wrongly admitted, wrong jury instructions given or other incorrect ruling

o Prejudicial Misconduct: something was said or done to unfairly benefit a partyo Newly discovered evidence that existed at the time of trial was excusably

overlooked and would likely have altered the outcome of the trialo False Evidence on which the Verdict was Basedo Jury’s Verdict Against the Great Weight of the Evidence: Lawyer can argue

that the jury did an outlandishly bad job of assessing witness credibility and weighing the evidence. Jury’s verdict must result in a miscarriage of justice

o Damages Awarded were Too High or Too Low Remittitur : P is given two choices: reduced damages OR new trial

Typical when jury award is extravagant (juries get no guidance of past jury awards + no market measurement for pain & suffering)

Ex: 100mil judgment by jury, judge says you can take 10mil or have a new trial. Accept 10 mil then you can’t appeal. Accept new trial a judge still won’t give you 100mil next time, but might give you 15mil if jury awards it.

Additur: D is given two choices: pay more damages OR new trial Typical when damages are low Not allowed in Fed. Court because violates 7th Amendment

7th Amendment: “no fact tried by jury shall be otherwise re-examined in any US court”

Remittitur is allowed under 7th because it is a subset of jury’s decision, but using Additur is going outside realm of jury decision

New Trial:o Can be granted on any/all issues in case – if it was a non-jury trial more facts &

new judgment can be madeo Can be called for Sua Sponteo Amendment of damages must be made within the same 28 days as the new trial

request Mistakes can’t be inconsequential must have the chance of changing the outcome of

the trial How to Appeal a WIN: If you win less than you sought, try to get a retrial and if the

retrial is denied then appeal the denial of the retrial

RULE 60 REOPENING THE JUDGMENT

CORRECTIONS BASED ON CLERICAL MISTAKES OR OVERSIGHTS/OMISSIONS On motion or sua sponte – correct a mistake if found in judgment or record

o Ex: Judgment was for $100k but was written in the judgment as $10ko [FORK] what does “clerical mistake” mean?

Semantic – comes from the work “clerical” so must mean “clerk” Textual –What does the rest of the rule say?

o “whenever one can be found” – generically allows for LOTS of time – such a broad allowance means courts narrow what is allowed to not open floodgates

Purpose – Whenever a reading of a part of a rule tends to obliterate the purpose or need for another part of the rule, that reading is disfavored. what does contract law say?

Every rule has 2 purposes – its purpose and counter purposeo [EXAM TIP] statute reading: “oversight” is a broad word, so you need to narrow it

in terms of the words around it, such as “clerical error”

GROUNDS FOR RELIEF Within 1 Year: because of mistake, inadvertence, surprise, excusable neglect, newly

discovered evidence that could not have been found with reasonable diligence, fraud, misrepresentation or misconduct by an opposing party

Any reason not listed above has only “reasonable” time limit: Judgment is void, judgment has been satisfied, released or discharged, judgment was based on another that was reversed or vacated, applying judgment is no longer equitable, any other reason

No time limit for fraud on the court

ISSUES Nit-pick ambiguities – no points for the right answer, it’s how intelligently you can argue

points [FORK] Finality v. Accuracy

o Finality: We want people to assume cases are over and balance their books accordingly and move on. We don’t want to disrupt them for minor things. If you had to reopen for new evidence you’d be constantly reopening cases. What is settled is settled.

Consequence: ignore all but the more egregious clerical errors If “judgment” errors were relevant slippery slope/floodgates/next case [Next Case] if pulling the wrong case is a “clerical error” then what else

might be considered a clerical error? If he pulls the wrong book and doesn’t find a specific case that’d change his opinion, is that an error? Prob not.

Maybe we don’t like evidence that comes after a case in the name of good policy since it affects finality. Look at the “next case” do you keep reopening cases?

Finality Administration costs (sheer amount of litigation and effort required by judges)

“on just terms” – leaves it to the judge to determine how to grant Rule 60 – new trial? Reduced damages? Sanctions? Etc.

Administrative Costs – judges actually limit and tie judges hands so they can focus on the 500 other cases they have. Courts would rather be wrong and finished than leave open and keep trying to fix

o Accuracy: We don’t like when cases are held incorrectly, especially when we know the truth after the fact

o Similar to how SOL protects finality of judgment

TIMING OF APPEALS

FINAL JUDGMENT RULE (28 USC §1291)Ordinarily a losing party cannot appeal a decision until final judgment has been entered in the trial court

SPECIAL NOTES The losing party can appeal any decision in the trial (during discovery, motions to dismiss, etc.) as long as an objection was made at the time of trial and so long as the error is not found to have been “harmless”

Harmless? = Judge asks, “how likely would this have been to affect the outcome?”

CONSEQUENCESIt is expensive to take a trial all the way to the end just to get an appeal (and if you settle you can’t appeal). So bad decisions by judges can affect a settlement price.

Hypo: If you ask a judge, “We want all documents related to chemical X”o If the judge allows: issue is not appeal-able but it will be costly & burdensomeo If the judge does not allow: issue may be appeal-able if you can show not having

docs affect outcome

EXCEPTIONS TO FINAL JUDGMENT RULE (“APPEAL OF INTERLOCUTORY ORDERS”)1. FRCP 54(b) – if lawsuit has multiple claims, any claim ruled on before others is

appealable right then2. 28 USC 1292

a. Injunctions b. Trial Judge Certifies

i. 1) controlling [pure] question of law; 2) substantial grounds for difference of opinion; 3) immediate appeal may materially advance ultimate termination of litigation

ii. Rationale: why waste 3 years settling something that would have been dismissed week 1?

iii. Doesn’t happen often because judge would basically be saying, “my decision isn’t good enough”

3. Collateral Order Doctrine a. Trial continues to litigateb. Issue on appeal is separate from merits of the casec. The decision must be final, rather than tentatived. The decision must be “effectively unreviewable” on appeal from final judgment

(“irreparable harm” requirement) – the appellant must show that an appeal at the end of the case will come too late

i. Ex: an appeal on a trial judge’s decision to deny requiring a bond at the beginning of a lawsuit (if loser is insolvent, you can’t get any judgment money out of them – so harm would be irreparable)

ii. Ex: Lauro Lines: If a K guarantees a “right” to avoid litigation that right may be destroyed if it can only be vindicated at the end of trial. On the other hand, courts have read clauses to mean “right to avoid a final judgment” and so an appeal would not destroy this right.

e. When an appeal is allowed on this basis it becomes a STRONG precedent for all future similar situations, which makes it rather rarely used method for ex-ante/next case reasons

i. If the “unreviewable right” is time and cost of trial, it is too broadii. Bad publicity is not an argument most courts recognize for allowing

immediate appeal

4. Mandamus (“extraordinary circumstances”) - a party “sues” the trial judge. An appeals court can immediately review an order that is an abuse of judicial authority, such as an order beyond the trial court’s jurisdiction or an order that violates a mandatory duty of the trial court.

a. Petitioning party must show irreparable harm (“effectively unreviewable if heard at the end of the case”)

b. Petitioning party must have a clear right to reliefc. Petitioning party must show judge’s order “exceeded proper bounds of judicial

discretion to be considered usurping in character, violation of a clear undisputable legal right”

d. If mandamus is sought on basis of 7th Amendment right, the requirement for “irreparable harm” is relaxed

e. An appeal on this basis sets no future precedent for similar situations, each is unique

5. Class Action Certification (see Rule 23)a. Rule 23(f) allows immediate appeals from an order granting or denying class

action certification. Appellate court has discretion to deny appeal.

RULE 23 CLASS ACTIONS

Generally Extortion (Easterbrook)? These are “industry busters” and can destroy whole companies

high chance of settlement Good business model: 1/3 of a HUGE settlement lots of cash for a short period of work

o Sketchy: “coupon settlements” where attorney gets cash and clients get coupons Most powerful arg for class action: if you don’t have class-action status then you no

longer have a case against the wrongdoer 23(a) In order for a case to be a candidate for class action, it must have the following

characteristics [CANT]: o (C)ommonality: questions of law or fact are common to the classo (A)dequecy: prove your lawyers and institution are prepared to handle such a caseo (N)umerous: class is so numerous that joiner of all members is impracticableo (T)ypical: the leading case is representative of others claims or defenses

23(b) Certification as class action should be granted o if separate actions would create a risk of:

Inequitable relief: Where early litigants in a class would claim all damages and thereby preclude later litigants in the class from obtaining damages

Individual Incident over Small $$: Alone the claim is not worth litigating, but together the claim becomes worth it (can afford an attorney) and you can “teach/punish the company”

A situation where some class members may be subject to “inconsistent adjudications”

o Relief for representative claim is appropriate for the entire classo Representative claim has common question of law or facto Class action structure is superior to other available methods

“Superior method” considers of class members’ interest, extent of already completed/pending related litigation, desirability of concentrating litigation, difficulties managing a class action

STANDARDS OF REVIEW

OVERVIEW Failure to raise an objection at the right moment during trial may lead to forfeiture of the

right to bring it up latero Harsh penalty may be disproportionate to the wrong, or disproportionately helpful

to a partyo Ex: If you build a house 1ft on neighbor’s property a court often errs on the side of

forcing you to tear it down. This is harsh, but in the future people will think VERY hard before building a house – which is good.

Do injustice a few times to have a lot of cases that will never come up

REASONS FOR/AGAINST Efficiency: If you do not object at the right time it may require a retrial which is

expensive. Incentivize lawyers to object at the least expensive moment (right away) Public Interest: Some rights can’t be waived no matter if opposing party forgets to

object Harmless Error: If the error is harmless… allow it? Or forget about it? Accuracy/Justice: if the consequences of forgetting are disproportionate compares to

inefficiency of objecting too lateo Plain Error: Sometimes an error is so plain that a court will raise it Sua Sponte.

This is allowed in criminal cases, but not in civil cases. Can you use it as a civil lawyer?

Yes: Draw a parallel between purpose No: Expressio Unius – it was intentionally left out because there is

recourse against a lawyer when damages are merely monetary called “malpractice”

STANDARDS OF REVIEW FOR APPEALS

Overview In considering various grounds for appeal, courts distinguish between findings of fact and

rulings of lawo Facts: Extremely difficult to get this reversed on appeal (impossible if it was

decided by a jury)o Law: judges may not need to know much, if anything, about the facts of a case

Effect in Appeals:o Law (plenary/de novo): court considers the question “from scratch” without

giving any weight at all to trial judge’s opinion Ex: Rule 12(b)(6), SJ, JNOV…

o Fact (deferential): court will only reverse if the trial judge was clearly erroneous (judge commits and error of law or abuse of discretion)

Purpose #1: a trial judge is in a better position than the appellate judge (has a comparative advantage of delicate balancing) to make factual determinations because he can hear and see witnesses and other evidence (appellate judges just read “cold” text evidence) (ex: Reopening Judgment, Retrial, etc)

Purpose #2: the case is likely fact sensitive and so a question of “uniformity” is less important (many appellate courts see their primary purpose as one of creating uniformity between lower courts)

SC is strictly uniform (doesn’t care about fixing errors from below). Might also take cases out of respect to Congress. Won’t do it because of the media

SC is not the “final decision” cuz they’re “infallible” – infallible cuz they’re final decision

Ex: equitable relief, certification of CA, allowing jury to hear specific evidence, Rule 59 witness credibility

o Both difficult Side Note: If you win on appeal you probably go back to the same trial judge – yikes!

RULE 19 ??

Parties REQUIRED to be joined (for certain reasons) (compulsory)

RULE 20 ??

Minimum requirements for a joined party (permissive) Person may join as a P if:

o They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence of series of transactions; AND

o Any question of law or fact common to all plaintiffs will arise in the action Person may be joined as a D if:

o Any right to relief asserted against them jointly or alternatively having arisen out of the same transaction; AND

o A question of law or fact common to all Ds will arise in the action Extent of Relief: Same relief need not be demanded among joined P or D Protective Measures: To avoid unfairness or hardship the court may separate trials or

make any other order to prevent delay or expense to a party

RULE 54 ??

RULE 35 ??

DISCOVERY

OVERVIEW Most important phase of modern civil litigation

o Shapes Settlements: removes surprises from trial, give parties a good idea of their chance of winning

o Consumes enormous human and financial resources (debatable whether costs are justified)

Discover Permissions: Broad scope limited only by relevance (even inadmissible evidence can be discovered)

o Judicial discretion at the fringes of the rules There is no winner or loser at this stage You can cause big unrecoverable expenses and get people to incriminate themselves Rationale: Truth trumps $$ expenses and embarrassment (few exceptions that are not

really about cost-benefit) Understand:

o 1. How do the rules work as truth seeking?o 2.How are rules used strategically?o 3. Economics and burden of parties and whether they are fair?

ORGANIZATION OF RULE Rule 26 – lays out scope and limits of Discovery process Rules 27-36 describe various techniques of Discovery Rule 37 – describes sanctions for parties for noncooperation or bad faith during

Discovery

RULE 26 DUTY TO DISCLOSE

26(A) GENERALLY Initial Disclosure: Some information must be provided to the opposing party “without

awaiting discovery request.” This disclosure is “compelled.” Disclosure at a specified time: ID of any expert who may be called at trial & Detailed

expert report Disclosure Before trial: Trial witness lists, etc. regarding non-impeachment evidence Pretrial Conference: Parties are required to meet early to plan discovery and discuss the

case

26(B) GENERALLY Limitations on Frequency and Extent 26(b)(2): court may limit

discovery/interrogatories/depositions if “the burden or expense of the proposed discovery outweighs its likely benefit” or is unreasonably duplicative or can be easily obtained from another source

Parties may obtain discovery regarding any non-privileged matter (attorney-client/work product) that is relevant to any party’s claim or defense (can’t get information, e. g. amount in party’s bank account, that is not relevant to the claim at hand.)

o “Relevant” is ambiguous lets parties push boundaries of discoverable stuffo Parties can discover inadmissible evidence if its calculated to lead to admissible

evidenceo “Hearsay” is discoverable because it may lead to admissible evidence

PRIVILEGED INFORMATION “Privileged” information cannot be discovered or used at trial (Rule 26(b)(1))

o Additional privileges include: doctor-patient and husband-wife privileges; o NO “parent-child” privilege

Privilege is common law doctrine, arguments look at purposes and incentives The more absolute the privilege is considered to be the more stingy a court may be in

extending privilege to a relationship Court balances: quest for truth versus necessary incentives

o Necessary Incentive: if attorney client privilege did not exist people wouldn’t talk/consult with lawyers at all

ATTORNEY-CLIENT PRIVILEGE

ATTORNEY-CLIENT Generally: Lawyer may not disclose communications by a client or advice given in course

of professional employment Exceptions:

o Client consentso Discover requires facts that happen to have been communicated to the lawyer

Requirements:o an attorney-client relationship must existo communications must be made for purpose of securing or giving legal advice, must

be made in confidence, and must be treated as confidential Purpose: to encourage client in need of legal advice to tell the lawyer the truth,

otherwise lawyer will not be of much assistance. That assistance promotes justice in the system.

o Purpose is NOT to protect the client, but encourage free exchange of info between attorney and client

o Purpose is NOT to protect the lawyer Downsides:

o if a client forgets something, a lawyer cannot share ito if a client confesses to a lawyer, that confession is inadmissible, might let a

murderer go freeo if a client refuses to disclose facts communicated to the lawyer, at a minimum a

lawyer would have to withdraw

ACOUSTIC SEPARATION Generally privileges are as limited as possible to secure their purpose (court’s see

privilege as a shame, but a necessity to encourage people to talk, only enforce it as far as is necessary to incentivize communications)

o information overheard by lawyer’s employees is still privileged, but overheard by an outside party depends on the court

o Objective intent: did it look like you meant communication in confidence or did you say it in a crowded room?

Against Privilege:o If it’s not the lawyer incriminating the client, people will probably continue to talk

with lawyero If this was a freak circumstance and it won’t happen again, allow it, it won’t stop

people from talkingo Textual Formalism: “Attorney-client” – a 3rd party is not mentioned, so the info isn’t

privilegedo Incentivize people to guard their conversations more closelyo Economic Argument: try to get as many conversations into evidence as possible

until people stop talking to their attorneyso If people will talk to their attorneys either way, this rule only protects guilty people

For Privilegeo Language translator: if they hear info between attorney and client can the

translator testify? So anyone that needs a translator doesn’t get benefit of attorney client privilege

Rephrase rule as non-essential 3rd parties?o Difficult to say what information is “outside the scope of legal advice” (is advice to

do something illegal outside the scope?) If lawyers in doubt, they’ll hedge. Don’t want to penalize client for attorney’s bad advice

Protect therapist-patient privilege?o For Privilege: Same idea as attorney-client – protect the flow of informationo Against Privilege: “Next Case:” slippery slope/ad absurdum – will we eventually

have “best-friend” privileges to protect flow of information? At some point, people will still talk even if its admissible in court, plus the court does not need to incentivize a parent-child relationship, neither is thinking about the courtroom when they talk

WORK PRODUCT DOCTRINE

OVERVIEW Rule 26(B)(3)(a): party may not discover documents or tangible things prepared in

anticipation of litigation or for trial by or for another party or its representatives including the attorney, consultant, insurer or agent

o The document itself is not discoverable, but the facts inside it are not protected – so if a person is asked a question in a deposition or interrogatory they have to give the answer

Exception: Where the witnesses are no longer available or can be reached only with difficulty

Burden is on the party that would try to invade privacy of work-product doctrine

Under no circumstances will a court order discovery of an attorney’s mental impressions, conclusions, opinions or legal theories

Hickman v. Taylor : codified in Rule 26(b)(3)(a)o “forcing an attorney to repeat or write out all that witnesses have told him and to

deliver the account to his adversary gives rise to grave dangers of inaccuracy and untrustworthiness (and the statements would be his language permeated with his inferences)”

Purpose: Prevent disclosure of mental impressions, avoid incentivizing lawyers to not write things down (which would lead to inefficiency, unfairness and cut-throat techniques during trial prep)

Accidental Disclosureo FRE 502 provides protection if 1) party took reasonable care to protect against

disclosure and 2) the disclosure was accidental 3) takes steps to rectify in Rule 26 Client is charged with having all the knowledge the lawyer has

RULE 30 ORAL DEPOSITIONS

OVERVIEW Notice of deposition is all that is required. Rule 45 Subpoena can be used to compel

attendance by a non-party When deposing a corporation, notice must describe area of inquiry, then the corp

designates a representative with respect to names area of inquiry Any party or non-party can be deposed Strategy – early deposition may allow you to get witnesses to lock in their testimony

before being coached, but you may want to wait until you know more about the case (depositions are expensive, and are often left until the end of discovery)

Deposition questions can be followed up

TEXTUAL 30(a) allows a party up to 10 depositions without needing permission of the court.

Permission is necessary if:o Exceeding 10 deposition limit; deposit a witness a 2nd time; depose a person before

complying with Rule 26(a) disclosure requirements; depose a witness in prison 30(c) deposition is taken under oath. Intrusive questions may be objected to but the party

must nevertheless answer, unless. Exception to preserve a privilege (attorney-client), enforce a limitation (WHAT?) or to present a motion to terminate (if deposition in bad faith)

o If intrusive question is asked during deposition, your client probably has to answer. You can’t tell him not to unless you’re protecting a privilege (attorney-client, 5th amendment, etc). The reason is efficiency, if you could say “not answer” it’d take too long to get a judge to rule – it’d unnecessarily halt the deposition

o Depositions can be taking in writing, and officers ask and record answers to questions verbatim

o Deposed can be forced to travel 100 miles and bring documents 30(d) Deposition is limited to one 7 hour day, but can be extended if needed or if other

circumstances cause delayo Sanctions can be granted for causing delayso Deposition can be terminated if conducted in bad faith or unreasonably annoys,

embarrasses or oppresses the deponent or party – expenses can be awarded (also awarded for failing to show to a deposition)

If you Motion to Terminate you’d better have a good reason because judge will be annoyed and come down hard on someone with sanctions

You can negotiate about questions off the record but that doesn’t guarantee anything

PRISONERS DILEMMA Perfect world: you learn everything and other party learns nothing Good: both cooperate, it’s cheaper and easier for everyone Bad: be as uncooperative as the rules allow (ex: to protect client from embarrassment) This really depends on if you see the other party as cooperative

o Cooperative: ask questions in good faith, don’t ask other side for expensive or time consuming discovery

o Uncooperative: respond in bad faith, ask burdensome questions Big Town v. Small Town Incentives: Big city you might not see the person again, small

town you might be neighbors

RULE 30 ORAL DEPOSITIONS

OVERVIEW Interrogatories can ONLY be served to a PARTY, that is, to a named party in the law suit.

Non-parties are not required to answer interrogatories. But you can use Rule 45 to subpoena a non-party and his documents

o Many times people do things informally or threaten a formal subpoenao Subpoena: force a party to arrive at a certain time and place with documents for

depositiono Interrogatories are directed to the party, but answers are actually drafted by the

attorney in most cases

TEXTUAL 33(a)(1) A party cannot serve another party more than 25 interrogatories without

permission from the court 33(a)(2) Interrogatories can ask an opinion or contention that relates to fact or the

application of law to fact, but courts can delay the answering for a later date 33(b)(1) Interrogatories must be answered by the party to whom they are directed, or if

it’s a corp or gov, by any officer or agento A corp or gov is required to exhaust all possible employees in search of an answero Each interrogatory must be answered under oath in writing or objected too Grounds for objection must be stated, otherwise it’ll be waivedo If an answer may be determined by doing research on records and burden to each

party is about the same, then parties can respond by specifying the records to be used or and giving that party time to examine or copy those records

You can point people to info if it’s equally accessible to both parties, and sometimes it’s a cost saver, but generally you will want to protect your privacy

RULE 34 PRODUCING DOCUMENTS

OVERVIEW A party may serve request to produce or allow the copying of any following items in its

possessiono Documents, drawings, graphs, charts, etc and any other tangible thingo Permission to enter another’s land to inspect, measure, survey, etc.

Request must specific items to be inspected, a time and place and form of information to be produced

Party must either object or perform, otherwise it will be compelled Huge strain on the parties – can be used to put pressure on the other side to settle Must turn over all requested documents, no matter how incriminating Non-parties may be compelled to produce documents by subpoena under Rule 45 Rule 35: a mental or physical exam can be compelled Becomes important if trade secrets are involved or there is a large number of documents

it would be expensive to copy or turn over to the other party

RULE 36 REQUEST FOR ADMISSION

OVERVIEW A party can serve a written request for admission of any relevant, non-privileged

discoverable info. It can ask about facts, application of law to fact, opinions, and opinions about genuineness of documents

If a response is not given within 30 days it will be assumed “admitted” If a matter is not “admitted” then answer must be either to deny or state why the party

cannot truthfully admit or deny. The response must fairly respond to the substance of the matter and qualify answers in good faith.

A party can assert lack of knowledge only after he has made a reasonable inquiry and readily available info is not sufficient for admission or denial.

An admission under this rule is only relevant to its own lawsuit, it can’t be used in others. Admissions can be amended or withdrawn An admission doesn’t mean you think its true, and a denial doesn’t mean its false. Denial: “I’m going to put you to your proof” If you deny something and the other party proves it is true then you can be held to pay

for costs of that discovery Options for answering – admit, deny, object, can’t answer Matters admitted will be removed from consideration via the pre-trial order Denying a question simply means that you intend to contest it at trial Blanket denials may subject the party to sanctions under Rule 37(c)(2) and be forced to

pay the costs of the other party in proving the matters denied Must answer truthfully or explain why one cannot answer fully; answer partially, qualify

as needed.

TOOLS

Deposition: advantage is pressure from a face to face, you can probe if you see deposed hesitate

Interrogatories: good for getting names of people to depose but this is unnecessary because 26(b) gives you list of witnesses

Economic: depositions can cost a lot of money (paying lawyers hourly to ask questions) instead of paying them to simply write down those same questions

Both interrogatories and depositions are made under oath and both give permission to amend their statements

Deposition: person may not remember the answer, but interrogatory gives (forces) them a chance to research and recall. Deposed witnesses say “I don’t know” a lot in depositions (and aren’t necessarily lying)

Interrogatory: person is required to exhaust knowledge of all those working below them. Saying “I don’t know” means no one in the company knows

Sometimes interrogatories are more expensive (questions can take 2 minutes to write, but 2 weeks to answer). But, the downside is poorly worded questions can be responded to with short, non-helpful answers requiring a back and forth and special permission

Depositions have no max question limit, but interrogatories are max 25 (and then you need special permission)

RULE 11 SANCTIONS

OVERVIEW Establishes standards and ethical constraints for attorneys and clients when filing

pleadings, motions or other papers and provides for sanctions (monetary penalties) against violators

It does not cover misbehavior during discovery (Rule 37)

18 U.S.C. §1927 “Any attorney or other person admitted to conduct cases in any court of the US who so

multiples the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

SIGNATURES 11(a) Every paper filed with the court must be signed by at least one attorney (or

unrepresented client), certifying to the best of his knowledge after a reasonable inquiry under the circumstances that:

o 11(b)(1) Purpose of paper is not to harass, cause unnecessary delay, or needlessly increase cost of litigation

o 11(b)(2) [LEGAL] The claims are warranted by existing law or are non-frivolous arguments for extending/modifying the law

Protected from monetary sanctions because a client may give bad facts (sanction-able), but lawyers and judges should spot “bad law” {ASK PROF}

Client will never be charged with sanctions for claims which lack legal standing (11(b)(2)) (lawyers role to know law)

o 11(b)(3) [FACTUAL] Factual contentions have evidentiary support, or will after further discovery

o 11(b)(4) Denials of factual contentions are warranted on the evidence or reasonably based on lack of evidence

o (b)(1) is rarely enforced; (b)(2-4) enforced more often

SANCTIONS In certain circumstances, after notice and chance to respond, a court may impose

sanctions on attorneys and law firms for violation of Rule 11o These can be brought by motion or sua sponte

Absent exceptional circumstances firms must be held jointly responsible for violation. Sanctions must be limited to what suffices to deter repetition of the conduct or

comparable conduct by others:o Non-monetary directiveso Order to pay penalty to courto Payment of costs and reasonable attorneys fees to opposing party

Limitations, No Monetary Sanctions IF:o Party is being sanctioned for violating “non-frivolous claims for

extending/modifying the law”o Court brings sanctions after a voluntary dismissal or settlement

11(c)(2) Safe Harbor Provisiono Rule 11 motion cannot be brought to court if, within 21 days of being served, the

non-movant corrects the problemo Purpose: provides for the good-faith correction of issues before sanctions

appropriately

Counter Argument: people can bring frivolous suits and drop quickly without sanctions

Courts could still sanction such a party sua sponte if they determined there was cause?? {ASK PROF – I THINK THIS WAS THE ONE I GOT WRONG}

QUESTIONS Rule 8 Notice Pleading v. Rule 11 Sanctions for No Evidentiary Support: how much

evidence is required at pleading?o Realistically, at this stage, if pleading is brought in good faith, no problem

Sanctions for refusal to drop non-meritorious suit after discovery?o If lawsuit becomes obviously non-meritorious, rule 11 can be brought on the next

document signed that states to the contrary (such as a motion for SJ) – it MUST be made on signing of a document

o Judge may use “spirit” of a rule to a find a violation or… If Rule 11 doesn’t have enough bite, use 18 USC §1927 – it is more aggressive Firms and lawyers must be held jointly responsible for violations and sanctions

o Accountability/Deterrence: make lawyers nervouso Economics: Law firms profit from lawyers worko Common Law: rule written against back drop of common law’s respondeat

superioro Compensation: make injured party (from frivolous suit) wholeo Economics: Strict liability and fear will create redundancy in the firm and perhaps

be less efficiento Deterrence v. Compensation:

If Compensation is the goal: collect from the firm (they have $$) If deterrence is the goal: could go either way, put pressure on both parties

to behave Similar to Compensatory Damages (reimburse injured party) v. Punitive

Damages (deter conduct or express community outrage) Spite & Malice are difficult intents to prove as reason for Rule 11 sanctions because if

you’ve been wronged there could likely be emotion – instead courts look strictly at whether the claim has merit.

o 11(b)(1) about harassment is rarely enforced – because too tough and subjective and courts don’t like deterrence to others for bringing lawsuits

SETTLEMENTS & COSTS

RULE 68 OFFER OF JUDGMENT & FEDERAL RULES OF EVIDENCE 408

OVERVIEW Settlements can happen at any point during the case {ASK PROF – can they happen after

judgment?} Settlement Formula: (Chance of Winning) * (Cost of Losing)

o Ex: (10% chance of winning) * ($100,000 typical final judgment value) = ~$10,000 settlement offer

FEDERAL RULES OF EVIDENCE 408 – COMPROMISES AND OFFERS TO COMPROMISE Evidence made in compromise negotiations regarding the claim is not admissible on

behalf of any party to prove liability, invalidity or impeach with inconsistent statemento Exception: if it’s a criminal case, negation was made by a public agency while

exercising investigative authority

o 408(b) Any other use of settlement agreements is OK, for example, prove a witness’s bias, negate a contention of undue delay, or prove an effort to obstruct criminal investigation

o Purpose: Rule is meant to encourage settlements and open discussions (“speak freely, it won’t be held against you”)

o Purpose: get people to say things they might not otherwise say in settlemento People stretching the truth or admitting things for the purpose of a compromise in

negotiations may confuse or “muddy” jury findings .Similarly, manufactures subsequently making a revision to a product cannot be used to

prove prior liabilityo Want to incentivize making such changes

FRE 408 QUESTIONS Interpretive: when do you cross the line from discussion negotiation Timing: does it matter if “settlement” negotiations happened before the lawsuit?

o Yes: incentivize people to negotiate before a lawsuit If we took away the privilege would people still talk? Without a lawyer? Do

we like that incentive? Lawyers may rewrite contracts to not encourage discussion

o No: gives you bright line for when the rule starts to apply Rule v. Standard:

Rules: are easier, cheaper, cruder, can have bad outcomes in rare instances

Standards: are more expensive, have “fair” outcomes, require a judge Players: does it matter if negotiators did not have the authority to make decisions in the

negotiation talks?o Powerful negotiation technique to use someone with limited authority, but will they

be protected by rule? Off Record: what if a promise is “off the record?” This doesn’t matter, as a matter of

public policy, the person will still have to testify Rule 11: settlement negotiation can be used for any other reason, including as evidence

in Rule 11 motion (since it is not disputing liability/validity of claims Impeachment Disallowed v. Witness Credibility Allowed: {ASK PROF}

o Not Allowed: to use statements from a negotiation such as “you have a good claim” to impeach a witness in court who says “you have a lousy claim”

Purpose: people say all sorts of things in negotiations to get a better settlement

o Allowed: use the fact that negotiations happened in one case as proof in another case that a given issue has merit or credibility

3rd Parties: Evidence of negotiations is barred whether a party or 3rd party hears it and tries to bring it in

Textual: “conduct or statements | made in | compromise negotiations | regarding the claim” – commas would make this statement more clear, seems to imply “regarding the claim” modifies “compromise negotiations”

Probative Value v. Potential for Prejudice: what is said in settlement negotiations may be useful sometimes but it might enflame the jury others we chose to avoid enflaming the jury so this is rather broad reaching rule

Incentives: people may lie and say BS if they know it can’t be used against them – good or bad?

RULE 68 – OFFER OF JUDGMENT Counter-intuitive cost shifting rule – the winning party pays costs because they wasted

the court’s time when they rejected a better offer

If you are D and you offer a settlement and P declines and the final judgment is not for more money than your settlement offer, then you do not have to pay P’s costs, and P may have to pay yours

P has 14 days in which to accept the settlement offer Cost v. Fees

o Fees: hourly rate/contingent fee for lawyerso Costs: litigation costs, stenography, expert witnesses, copy machine, etc.

Prevailing party can normally collect costs, but not fees (some states allow fees too) “Judgment finally obtained” = amount to be used in calculation is the one after being

reduced after Remittitur “When one party’s liability to another has been determined but the extent of liability

remains to be determined…the part held liable may make an offer of judgment” this is not as straight forward as I thought? {ASK FARNSWORTH}

RULE 68 deals with settlements and offers of judgments before trial. At least 14 days before trial defendant may offer plaintiff a judgment on specific terms

and with accrued costs.o Within 14 days of this service of the offer the other party can serve acceptance,

and either can file with court. Generally courts find offers, once made, to be irrevocable for the 14 day period, even if

not yet accepted (incentivizes plaintiff to think carefully)o However, the court will allow revocation in extreme circumstances (example of fire

which was proved to be arson after insurance offer) Unaccepted offer = withdrawn (within 14 days is implied) does not preclude later offer,

and proof of unaccepted offer not admissible except to determine costs This rule applies to an official “offer of judgment” not settlements more generally

(negotiations)

RULE 68 QUESTIONS Revocation of offer during those 14 days?

o Yes: new evidence comes to light, changes situation, would be more accurate and fair to allow revocation

o No: absurd scenario where D offers very high settlement, then immediately retracts it, now if you win less than that you pay D’s costs; makes situations more complicated (adds more variables) so maybe avoid it

o Answer: generally irrevocable, exceptions when there is fraud or result would embarrass the court

o You can reject and then accept an offer if still within 14 days Reasoning: steep consequences so don’t make it too easy to reject an offer

Rule v. Standard – because this is a rule and can have unexpected result, courts keep consequences low (no fees, only costs)

If P does not accept and offer and eventually wins less than that offer (“not more favorable” – in a monetary sense – non monetary is not considered), the costs accrued by the other side since the offer are payable by the winning party.

o Opposite does not apply, P cannot make an offer to D with punishmentso Costs are generally not significant, but does incentivize settlements before trial

(efficiency/incentives) Difficult to guess what award might be so don’t want to overly punish Might just be unlucky (or stupid jury); not acting in bad faith Settlement values are derived from looking at past cases and determining

probability of an outcome – there may be outlier decisions though P may already internalized the punishment of lost opportunity for higher

settlement

o High penalty would lead to meritorious claims being settled for far less than worth (justice)

Purpose: penalize P for “irrational decision” and help them internalize that punishment by making them pay $$

Principle: the cruder the rule the milder the penalty