The Litigation Process

4 The Litigation Process

Trials What is the central purpose of a trial?

Trials To show justice being done.

Parties • Plaintiff v. Defendant (Civil) • State or U.S. v. Defendant (Criminal) • Counterclaim- Counterplaintiff v. Counterdefendant • Appellant v. Appellee (Court of Appeals) • Petitioner v. Respondent (U.S. Supreme Court) • Claimant v. Employer in ESC • Third-Party Defendant

Standing To Sue • Allegations • Involves a Case/Controversy (refer: Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)) • Plaintiff Has Personal Stake In the Resolution

Standing To Sue DAIMLERCHRYSLER CORP. et al. v. CUNO et al. certiorari to the united states court of appeals for the sixth circuit No. 04–1704. Argued March 1, 2006—Decided May 15, 2006* The city of Toledo and State of Ohio sought to encourage DaimlerChrysler Corp. to expand its Toledo operations by offering it local property tax exemptions and a state franchise tax credit. A group of plaintiffs including Toledo residents who pay state and local taxes sued in state court, alleging that the tax breaks violated the Commerce Clause. The taxpayer plaintiffs claimed injury because the tax breaks depleted the state and local treasuries to which they contributed. Defendants removed the action to District Court. Plaintiffs moved to remand to state court because, inter alia, they doubted whether they satisfied either the constitutional or prudential limitations on standing in federal court. The District Court declined to remand the case, concluding that plaintiffs had standing under the “municipal taxpayer standing” rule articulated in Massachusettsv.Mellon, 262 U.S. 447(1923) . On the merits, the court found that neither tax benefit violated the Commerce Clause. Without addressing standing, the Sixth Circuit agreed as to the municipal tax exemption, but held that the state franchise tax credit violated the Commerce Clause. Defendants sought certiorari to review the invalidation of the franchise tax credit, and plaintiffs sought certiorari to review the upholding of the property tax exemption. This Court granted review to consider whether the franchise tax credit violates the Commerce Clause, and directed the parties to address the issue of standing. Held: Plaintiffs have not established their standing to challenge the state franchise tax credit. Because they have no standing to challenge that credit, the lower courts erred by considering their claims on the merits. Pp. 4–18.

Standing To Sue DAIMLERCHRYSLER CORP. et al. v. CUNO et al. certiorari to the united states court of appeals for the sixth circuit No. 04–1704. Argued March 1, 2006—Decided May 15, 2006* 1.State taxpayers have no standing under Article III to challenge state tax or spending decisions simply by virtue of their status as taxpayers. Pp. 4–13. (a) Before this Court can address the merits of plaintiffs’ challenge, it has an obligation to assure itself that the merits question is presented in a proper Article III “case” or “controversy.” Lujanv.Defenders of Wildlife, 504 U.S. 555(1992). The case-or-controversy limitation is crucial in maintaining the “ ‘tripartite allocation of power’ ” set forth in the Constitution. Valley Forge Christian Collegev.Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982). “Article III standing … enforces the … case-or-controversy requirement.” Elk Grove Unified School Dist.v. Newdow, 542 U.S. 1 (2004). The requisite elements of standing are familiar: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”Allenv. Wright, 468 U.S. 737 (1984). Plaintiffs, as the parties now asserting federal jurisdiction, must carry the burden of establishing their standing. Pp. 4–6.

Standing To Sue DAIMLERCHRYSLER CORP. et al. v. CUNO et al. certiorari to the united states court of appeals for the sixth circuit No. 04–1704. Argued March 1, 2006—Decided May 15, 2006* (b) Plaintiffs’ principal claim that the franchise tax credit depletes state funds to which they contribute through their taxes, and thus diminishes the total funds available for lawful uses and imposes disproportionate burdens on them, is insufficient to establish standing under Article III. This Court has denied federal taxpayers standing under Article III to object to a particular expenditure of federal funds simply because they are taxpayers. See, e.g.,Valley Forge Christian College, supra, at 476–482. The animating principle behind cases such as Valley Forge was announced in Frothinghamv.Mellon, decided with Massachusettsv.Mellon,, 262 U.S. 447 (1923)in which the Court observed that a federal taxpayer’s “interest in the moneys of the Treasury … is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Id., at 486–487. This rationale applies with undiminished force to state taxpayers who allege simply that a state fiscal decision will deplete the fisc and “impose disproportionate burdens on them.” See Doremusv. Board of Ed. of Hawthorne, 342 U.S. 429 (1952) . Because state budgets frequently have an array of tax and spending provisions that may be challenged on a variety of bases, affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury would interpose the federal courts as “ ‘virtually continuing monitors of the wisdom and soundness’ ” of state fiscal administration, contrary to the more modest role Article III envisions for federal courts. See Allen, supra, at 760–761. Pp. 7–11. Roberts, C. J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment. (Note that this was a 9-0 decision.) (Note: Parts 1(c) and 2 of this opinion was omitted)

Standing To Sue • FRIENDS OF THE EARTH v. LAIDLAW ENVIRONMENTAL SERVICES, 528 U.S. 167 (2000) • FACTS: Laidlaw Environmental Services bought a facility in Roebuck, South Carolina that included a wastewater treatment plant. The South Carolina Department of Health and Environmental Control (DHEC) granted Laidlaw a permit to discharge treated water into the North Tyger River, but limited the discharge of pollutants into the waterway. Laidlaw began to discharge pollutants, particularly mercury, in excess of the limits sets by the permit. DHEC and Laidlaw reached a settlement regarding this matter. Friends of the Earth (FOE) filed a citizen suit against Laidlaw alleging noncompliance with the permit and seeking declaratory and injunctive relief and an award of civil penalties. • ISSUE: Does FOE have Article III standing to bring the lawsuit?

Standing To Sue • FRIENDS OF THE EARTH v. LAIDLAW ENVIRONMENTAL SERVICES, 528 U.S. 167 (2000) • DECISION: Yes. • REASONS: 1. To satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is concrete and particularized and actual and imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely that injury will be redressed by a favorable decision. 2. Focusing on injury to the plaintiff, the district court found that FOE had demonstrated a sufficient injury to establish standing. The plaintiff alleges an injury that is attributable to the actions of the defendant. The penalties would redress FOE’s injuries by abating current violations and preventing future ones.

Standing To Sue • The Fair Housing Act of 1968 outlaws discrimination in housing and authorizes civil suits to enforce the law. Suit was filed against the defendant operator of two apartment complexes alleging "racial steering" in violation of the law. Plaintiffs were testers who never intended to rent an apartment. Coleman, who is black, was told that no apartments were available, but Willis, who is white, was told that there were vacancies. In fact, there were apartments available for rent. The district court held that the plaintiffs lacked standing and dismissed the suit. • Issue: Did either party have standing to sue under the Fair Housing Act? • Held: Despite the fact that the "testers" had no intent to rent the apartments, Congress prohibited misrepresentation to "any person." Therefore all persons have a legal right to truthful information. Because Congress, in this act, intended to give standing the fullest extent possible, a plaintiff must simply allege that the defendant's actions resulted in a distinct injury. Since Coleman received false information, he can properly allege that the defendants injured him. Since Willis received accurate information, he cannot properly allege a violation of the Fair Housing Act. Havens Realty Corp. v. Coleman, 102 S.Ct. 1114 (1982).

Standing To Sue • Plaintiff, an organization concerned with conservation, brought suit for a declaratory judgment and an injunction to restrain federal officials from approving an extensive skiing development in the Mineral King Valley in the Sequoia National Forest. • Issue: Does plaintiff have standing to sue? • Held: No. A mere "interest in a problem," no matter how long-standing the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or "aggrieved" within the meaning of the APA. The court looks to a personal stake in the outcome, in order to ensure that the proceeding will be adversary. Sierra Club v. Morton, 92 S.Ct. 2361 (1972).

Standing To Sue • To stabilize competition among dairy farmers, federal law authorizes the Secretary of Agriculture to issue orders setting the minimum prices that processors must pay farmers for milk. Individual consumers filed suit challenging the prices. • Issue: Do they have standing to sue? • Held: No. Only the processors and farmers may challenge the process. Block v. Community Nutrition Institute, 104 S.Ct. 2450 (1984).

Jurisdiction • Jurisdiction • A court can only hear cases within its jurisdiction • Venue • The location of a matter within a particular jurisdiction • Removal • Process for change of venue • Conflict of Laws • Procedural law which determines law of which jurisdiction applies to a particular matter

Federal Courts -- Two kinds of civil lawsuits were permitted • Federal Question Cases • A claim based on the United States Constitution, a federal statute, or a federal treaty • Diversity Cases • When the plaintiff and defendant are citizens of two different states, AND • the amount in dispute is greater than $75,000

Jurisdiction System Designs, Inc. v. New Customware Company, Inc. • Held: The U.S. District Court finds that New CustomWare’s interactive website met the “minimum contacts” test because the site was intended to reach potential customers in Utah, offered training and registration, and included a list of major clients with Utah connections. For these reasons, the court holds that New CustomWare could have reasonably anticipated being hauled into the Utah courts.

Jurisdiction System Designs, Inc. v. New Customware Company, Inc. • Reasoning: It is increasingly clear that modern businesses no longer require an actual physical presence in a state in order to engage in commercial activity there. With the advent of “e-commerce,” business may set up shop without ever actually setting foot in the state where they intend to sell their wares. Our conceptions of jurisdiction must be flexible enough to respond to the realities of the modern marketplace. Businesses who structure their activities to take full advantage of the opportunities that virtual commerce offers can reasonably anticipate that these same activities will potentially subject them to suit in the locales that they have targeted. Might this cause some businesses to avoid on-line transactions with “high risk” jurisdictions? According to a recent global survey on internet jurisdiction, it appears that some companies are avoiding business with such jurisdictions and are employing various legal and technological tools to influence jurisdictional outcomes. Undertaken by the American Bar Association and the International Commerce Commission, the survey suggests that North American companies are generally more worried about expansive Internet-related jurisdiction exposure than are their counterparts in Europe and Asia. Discuss the ways that expansive notions of jurisdiction shape the way organizations transact business, both in the States and abroad. In a global business context, as internet jurisdiction “grows,” so too does the need for companies to familiarize themselves with the laws of the countries in which they do transactions. The ABA/ICC report is available at: http://www.mgblog.com/resc/Global%20Internet%20Survey.pdf

Subject Matter Jurisdiction • General Jurisdiction- Authority To Hear Any Case • Limited- Authority To Hear Specific Kinds Of Cases • Other Limits • Subject Matter (e.g. Wills & Estates in Probate Court) • Amount in Controversy • Domicile of Parties • Diversity Of Citizenship • Federal Issues

Personal (In Personam) Jurisdiction • Voluntary Submission To Court’s Power- Venue • Summons • Long-Arm Statute- Out-Of-State Defendant, Due Process • Tort Committed Within State • Property Within State • Transaction Occurred Within State • Extradition • Contrast: In Rem, over property

Personal Jurisdiction • TOYS “R” US, INC.; GEOFFREY, INC. v. STEP TWO, S.A.; IMAGINARIUM NET, S.L.,2003 U.S. App. LEXIS 1355 (3rd. Cir. 2003) • FACTS: Toys “R” Us, Inc. and Geoffrey, Inc. bought this action against Step Two, S.A., and Imaginarium Net alleging that Step Two used its Internet web sites to engage in trademark infringement, unfair competition, misuse of the trademark notice symbol, and unlawful “cybersquatting.” The district court denied Toys’ request for jurisdictional discovery and granted Step Two’s motion to dismiss for lack of personal jurisdiction. • ISSUE: Should the district court have granted Toys’ request for jurisdictional discovery prior to dismissing the case?

Personal Jurisdiction • TOYS “R” US, INC.; GEOFFREY, INC. v. STEP TWO, S.A.; IMAGINARIUM NET, S.L.,2003 U.S. App. LEXIS 1355 (3rd. Cir. 2003) • DECISION: Yes. There should be limited jurisdictional discovery, relating to Step Two’s business activities in the United States. • REASONS: 1. A state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist "minimum contracts" between the defendant and the forum state. 2. The concept of minimum contracts performs two related but distinguishable functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the states through their courts do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system. 3. The defendant's contacts with the forum state must be such that maintenance of the suit "does not offend 'traditional notions of fair play and substantial justice.'" The relationship between the defendant and the forum must be such that it is reasonable to require the corporation to defend the particular suit that is brought there. 4. The district court’s denial of jurisdictional discovery prevented Toys from obtaining the information needed to establish personal jurisdiction.

Long-Arm Statute • A Michigan franchisee refused to vacate a Burger King restaurant premise after his franchise was terminated. The Burger King Corporation brought a diversity action in a Florida federal court. The franchisee claims that the Florida court has no personal jurisdiction. Issue: Is the Michigan franchisee subject to the jurisdiction of the Florida court? Held: Yes. The district court's exercise of jurisdiction pursuant to Florida's long-arm statute did not violate due process. The federal court in Florida may constitutionally assert, under Florida's long-arm statute, personal jurisdiction over a Michigan restaurant franchisee who, despite having no physical ties with Florida, established a substantial and continuing relationship with the franchisor's Florida headquarters and received fair notice from the franchise documents and course of dealings that he might be subject to suit in Florida for breach of the franchise contract. Burger King Corp. v. Rudewicz, 105 S.Ct. 77 (1985).

Personal Jurisdiction • Shirley Jones, a professional entertainer who lives and works in California, brought suit in a California state court claiming that she had been libeled in an article written by the defendants in Florida and published in the National Enquirer, a national magazine having its largest circulation in California. Issue: Does the California court have jurisdiction over the defendant? • Held: Yes. California has personal jurisdiction over the defendant since the defendant's contacts with the state satisfied the Due Process "minimum contacts test." California is the focal point both of the allegedly libelous article and of the harm suffered. Calder v. Jones, 104 S.Ct. 1482 (1984).

Class-Action Suits • Filed On Behalf Of All With Similar Claim • Examples on p.94 • Notice Given To All Members Of Class • Plaintiffs Pay Court Costs • Settlement • Benefits Class • Release All Claims

Class-Action Suits Advantages of Class Actions • Depending on the case, a class action may offer a number of advantages. Each of these advantages essentially stems from the fact that a class action aggregates a large number of individualized claims into one representational lawsuit. Although aggregation creates the potential for harm, it also creates potential benefits. • First, aggregation may increase the efficiency of the legal process. In cases with common questions of law and fact, aggregation of claims into a class action may avoid the necessity of repeating "days of the same witnesses, exhibits and issues from trial to trial." Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 473 (5th Cir. 1986) (granting certification of a class action involving asbestos).

Class-Action Suits Advantages of Class Actions • Second, a class action overcomes "the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 388, 344 (7th Cir. 1997)). "A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor." Amchem Prods., Inc., 521 U.S. at 617 (quoting Mace, 109 F.3d at 344). In other words, a class action ensures that a defendant who engages in widespread harm -- but does so minimally against each individual plaintiff -- must compensate those individuals for their injuries. For example, thousands of shareholders of a public company may have losses too small to justify separate lawsuits, but a class action can be brought efficiently on behalf of all shareholders.

Class-Action Suits Advantages of Class Actions • Third, in "limited fund" cases, a class action ensures that all plaintiffs receive relief and that early-filing plaintiffs do not raid the fund (i.e., the defendant) of all its assets before other plaintiffs may be compensated. See Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). A class action in such a situation centralizes all claims into one venue where a court can equitably divide the assets amongst all the plaintiffs if they win the case.

Class-Action Suits Advantages of Class Actions • Finally, a class action avoids the situation where different court rulings could create "incompatible standards" of conduct for the defendant to follow. For example, a court might certify a case for class treatment where a number of individual bond-holders sue to determine whether they may convert their bonds to common stock. Refusing to litigate the case in one trial could result in different outcomes and inconsistent standards of conduct for the defendant corporation. Thus, courts will generally allow a class action in such a situation. See, e.g., Van Gemert v. Boeing Co., 259 F. Supp. 125 (S.D.N.Y. 1966).

Class-Action Suits Advantages of Class Actions • Whether a class action is superior to individual litigation depends on the case. The Advisory Committee Note to Rule 23, for example, states that mass torts are ordinarily "not appropriate" for class treatment. Class treatment generally does little to improve the efficiency of a mass tort because the claims almost always involve individualized issues of law and fact that will have to be re-tried on an individual basis. See Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (rejecting nationwide class action against tobacco companies). Mass torts also involve high individual damage awards; thus, the absence of class treatment will not impede the ability of individual claimants to seek justice. See id. Other cases, however, may be more conducive to class treatment

Class-Action Suits • Wal-Mart vs. Class Actions (Business Week, March 21, 2005, p.73, by Aaron Bernstein) • The retail giant's novel defense in a massive suit could rewrite the playbook. Corporate America could find it a whole lot easier to fight off employment class actions if Wal-Mart Stores Inc. prevails in a sex discrimination case to be heard soon by the U.S. Ninth Circuit Court of Appeals. Indeed, a Wal-Mart victory could tilt the playing field for virtually all of these kinds of suits, which have plagued Boeing, Coca-Cola, and dozens of other large employers over the years. • Wal-Mart's ambitious legal strategy strikes at the heart of what it means to file a class action. The company maintains that its constitutional rights would be violated if the court allows a suit to go forward involving up to 1.5 million of the retailing giant's current and former female employees. Because such a case would deprive the company of its rights to defend itself against each woman's claim, it argues, the courts should allow suits only on a store-by-store basis. If the Ninth Circuit agrees and strikes down the multistate action certified by a lower court, it would likely kill the largest employment class action in U.S. history. More broadly, it would open wide the door for all large companies to make similar arguments. "A victory for Wal-Mart might mean that plaintiffs can't bring nationwide class actions anymore and that they might have to do them locally or regionally," …

Class-Action Suits • … A few companies have tried similar arguments in bits and pieces and gotten nowhere. But Wal-Mart is the first to tackle the constitutional issues head-on, … Certainly, it faces tough odds at the Ninth Circuit, one of the nation's more liberal federal appeals courts. Instead, it's probably aiming for the more conservative U.S. Supreme Court, say experts. At the same time, Wal-Mart has been hedging its bets by engaging in settlement talks with the plaintiffs for several months, say lawyers involved. Still, the question is whether Wal-Mart's suggested store-by-store alternative makes sense. After all, the most extreme outcome -- thousands of mini class actions -- would clog the U.S. courts for years. Even the company's own prediction that plaintiffs could have grounds to bring discrimination claims at no more than 10% of its 3,400 U.S. stores would qualify as a lawyer's full-employment act. Of course, Wal-Mart may simply believe that few store-level cases would be filed in the end, although Wal-Mart's lawyers deny that. Still, "if even 100 suits were brought, it would be a mess for Wal-Mart," … The case began in 2001, when a group of female Wal-Mart employees sued, claiming that the world's largest retailer systematically paid women less than men in the same jobs and promoted men ahead of similarly talented women. Last June a Northern California District Court judge granted the plaintiffs class status, allowing them to sue on behalf of all women who had worked at Wal-Mart's U.S. stores since December, 1998. Wal-Mart quickly appealed the class certification to the Ninth Circuit, which is due to set the hearing date any day.”

Class-Action Suits • The thrust of Wal-Mart's appeal is that the district judge ran roughshod over the company's constitutional rights to due process and to a jury trial. Despite the company's reputation for micromanaging down to the penny, it argued that pay and promotion decisions are made almost entirely by local store managers. So the judge should have ignored the plaintiffs' statistics showing large nationwide disparities in the way female employees are paid and promoted. Instead, it should hear only store-level suits. Doing otherwise, the company says, would leave it unable to prove that an individual was paid correctly or properly passed over for promotion. So it could be forced to pay for something it didn't do. That would be a clear violation of the Fifth Amendment's requirement that "no person shall be...deprived of life, liberty, or property without due process of law.“ … When you're talking about taking money from one citizen and giving it to another, you can't just rely on aggregate statistics, which don't tell you who is actually discriminated against.“ The problem, of course, is that this logic undercuts the very concept of class actions. The point of grouping many employees together into one lawsuit is to deal with complaints that they hold in common. In employment discrimination cases, the problems usually involve disparate policies or practices by the corporation. Indeed, the plaintiffs' response is that broad workforce data are actually more reliable than individual hearings in such cases. They point out, for example, that the retailer promoted hourly workers using a "tap-on-the-shoulder" method, in which employees couldn't apply for a position and store managers singled out promising candidates when vacancies occurred. So it would be impossible to tell now which individual women would have qualified for a promotion even if there had been no discrimination. "In these circumstances, the use of workforce data to compute aggregate monetary relief 'has more basis in reality...than an individual-by-individual approach,"' the plaintiffs say, citing a prominent 1974 class action.

Class-Action Suits The two sides disagree just as strongly about which approach would be fairer to the individual women involved. If the court uses aggregate company statistics, as is typical in such cases, then women who never had any desire to become managers could get back pay or damages they're not entitled to, … Or those who suffered egregious discrimination at one store would get nothing if Wal-Mart wins. The plaintiffs argue that rough justice is better than no justice at all. They say that in the nationwide class approach, Wal-Mart's total liability would be set by looking at how all female employees fared across the company. If some of that money went to women who didn't actually suffer, then women who did experience discrimination might get less than they should have. But Wal-Mart itself would be no worse off. Wal-Mart's sheer size puts it in a category all its own. If it succeeds in cutting class actions down to bite-size pieces, large -- and not so large -- employers could end up benefiting.

The Adversary System Function of Judge in Common Law System • Trial Judge = Referee • Judges are more directly involved in Civil Law System Function of Attorney in Common Law System • Zealous Advocacy

Trial Proceedings • Docket/Continuance • Jury List/Voir Dire/Selection/Excuse for cause/Peremptory Challenges • Opening Statements • Direct Examination/Cross Examination/Redirect/Recross • Closing Arguments • Jury Instructions • Motion for a Directed Verdict (like Motion to Dismiss)

Trial Proceedings • Burden of Proof • Civil Cases (Preponderance of the Evidence) • Criminal Cases (Beyond a Reasonable Doubt) • Sequestration = separation • Verdict • Hung Jury = unable to agree on a verdict • Judgment Not Withstanding the Verdict (J.N.O.V)

Procedural Rules Pleadings Appeal Pretrial Motions Discovery Posttrial Motions Pretrial Conference Trial

Pleadings • Rules of Civil/Criminal Procedure (Federal/State) • Complaint • Contains allegations • Form matters • Timing matters • Results in summons requiring appearance • Responded to by Answer or Motion to Dismiss • May include affirmative defenses, counterclaims • Failure of defendant to appear = default judgement

Discovery • Discovery • Opportunity to gather evidence • Depositions (Verbal) • Interrogatories (Written) • Usually limited number • Request Admissions • Requests to Produce Documents • Mental/Physical Exams • Often used as Tactic to Intimidate

Discovery • CHUDASAMA v. MAZDA MOTOR CORP., 123 F.3d 1353 (11th Cir. 1997) • FACTS: The Chudasamas had an accident while driving a Mazda MPV minivan. There were serious injuries in this accident. The Chudasamas sued Mazda claiming defects in the van caused the accident and injuries. The Chudasamas also alleged that Mazda had defrauded them. Mazda moved to dismiss the fraud claim. The trial judge never ruled on this motion. Mazda refused to answer what is argued were excessively broad discovery requests. The trial judge sanctioned Mazda’s refusal to participate in discovery by entering a default judgment against Mazda. • ISSUE: Was this entry of a default judgment a reasonable exercise of the trial judge’s discretion?

Discovery • CHUDASAMA v. MAZDA MOTOR CORP., 123 F.3d 1353 (11th Cir. 1997) • DECISION: No. • REASONS: 1. The fraud claim was dubious enough to require the judge to rule on Mazda’s motion to dismiss. 2. Failing to rule on this motion allowed discovery to become excessively broad. 3. Entering a default judgment against Mazda was so unduly severe under this case’s circumstances as to amount to a clear abuse of discretion.

Motions • Failure to State a Claim • Statute Of Limitations • Judgment On Pleadings (No Additional Evidence) • Summary Judgment (Additional Evidence, e.g. Affidavits) • Frivolous Cases (Rule 11 sanctions)

Peremptory Challenges • J.E.B. v. ALABAMA EX REL. T.B.,114 S.Ct. 1419 (1994) • FACTS: At the petitioner's paternity trial, the State of Alabama used 9 of its 10 peremptory challenges to remove male jurors. The petitioner challenged the state's action as a violation of the mandate of Boston v. Kentucky that prohibits race-based discrimination in the use of peremptory challenges. The trial judge overruled the objection and, as a result, the court empaneled an all-female jury. The jury subsequently found the petitioner to be the father of the child in question and the trial court ordered him to pay child support. • ISSUE: Is discrimination on the basis of gender in the exercise of peremptory challenges permissible?

Peremptory Challenges • J.E.B. v. ALABAMA EX REL. T.B.,114 S.Ct. 1419 (1994) • DECISION: No. • REASONS: 1. The exclusion of women from jury service continued well into the 20th century. 2. Gender-based classifications have been subject to heightened scrutiny in recognition of the real danger that attitudes regarding gender may be based upon out-dated misconceptions. 3. The State of Alabama concedes that its decision to strike men may have been based upon the perception that men, otherwise totally qualified to serve upon a jury, might be more sympathetic to the arguments of a man in a paternity action. 4. Discrimination by litigants on the basis of gender during jury selection invites cynicism respecting the jury's neutrality and its obligation to adhere to the law. Gender may not serve as a proxy for bias.

Peremptory Challenges • Edmonson, a black construction worker employed by Leesville, was injured when a company-owned truck rolled backward and pinned Edmonson against some construction equipment. Edmonson sued Leesville on a negligence claim. During voir dire, Leesville used two of its three peremptory challenges to remove black persons from the prospective jury. Edmonson asked the district court judge to require that Leesville explain a race-neutral basis for striking the two jurors. The judge refused Edmonson's request, and a jury of eleven white persons and one black person awarded Edmonson only $18,000. Edmonson appealed. • Issue: May a private litigant in a civil trial use peremptory challenges to strike potential jurors on the basis of race? • Held: No. Discrimination on the basis of race in selecting a jury in a civil proceeding harms the excluded juror no less than discrimination in a criminal trial. While the Constitution's protections of individual liberty and equal protection apply in general only to action by the government, peremptory challenges have no significance outside a court of law. Their sole purpose is to permit litigants to assist the government in the selection of an impartial trier of fact. A private entity becomes a government actor for the limited purpose of using peremptories during jury selection. The selection of jurors represents a unique governmental function delegated to private litigants by the government and attributable to the government for purposes of invoking constitutional protections against discrimination by reason of race. Edmonson v. Leesville Concrete Company, Inc., 111 S.Ct. 2077 (1991).

Sample Patterned Jury Instructions • California has adopted the following instructions in Products Liability cases: • PRODUCTS LIABILITY--STRICT LIABILITY IN TORT--FAILURE TO WARN • "A product is defective if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer fails to give adequate warning of such danger." • "A manufacturer has a duty to provide an adequate warning to the user on how to use the product if a reasonably foreseeable use of the product involves a substantial danger that would not be readily recognized by the ordinary user." • "A manufacturer has a duty to provide an adequate warning to the consumer of a product of potential risks or side effects which are known, or in the exercise of reasonable care should have been known, which may follow the foreseeable use of the product."

Post-Trial • Writ of Execution - Sheriff seizes sufficient property to cover judgment • Writ of Garnishment - Attach future assets or assets held by 3rd party (e.g. of wages for child support) • Injunction/Contempt • Res Judicata (Finality) • Full Faith & Credit • Consider implications of this in re: Gay Marriage

Frivolous Lawsuits • Examples of Frivolous Lawsuits • (1) Negligence suit by two lottery ticket holders against a T.V. station that broadcast incorrect lotto numbers. Alleged injury - mental distress. • (2) A male with 2 1/2 years of hair growth sued a hair stylist that cut his hair short on the sides and left it long on top. Alleged injury - loss of right to enjoy life and a need for psychiatric help to overcome anxiety. • (3) Lawyer sued city whose policemen had given him three traffic tickets. Alleged theory - RICO violation - city was a racketeer organization. • (4) A clerk for a department store was injured on an escalator when a child played a prank by pressing the emergency stop button. The clerk sued the manufacturer for her pain and suffering. Theory - the manufacturer should have known better than to put a bright-red emergency button on each end of the escalator. • (5) A father sued a high school in Alvord, Texas for $1 million in damages after the local high school lowered his daughter's grade point average from 95.478 to 95.413 for an unexcused tardiness. Theory - emotional distress.

Appellate Procedure • The Appeal • Basis • Material Error of Law, preserved by objection • Insufficient Evidence • Transcript • Brief • Amicus Curie (“Friend of the Court”) • Oral Arguments

Appellate Procedure • Results of Appeal • Affirm • Reverse • Remand • In whole or in part

The Litigation Process