1 Agenda for 12th Class Admin –Name plates –Handouts Slides Table of Motions 1995 Exam –Tentative dates for court visit M 10/19 Gross’s contracts class is canceled Appeals German procedure

2 Assignment for Next Class 1995 exam question (Writing Assignment for Group 4) –Very hard –Pay attention to genre -- appellate opinion (not memo to partner) Need to explain at end whether you affirm or reverse If reverse, need to explain what, if anything, district court needs to do on remand –Pay attention to the appellate review issues Standard of review, harmless error, etc. –Of course, also pay attention to other issues -- Discovery, amendment…

3 Appeal: Who Who can appeal –Side who lost below –Can only appeal to change judgment, i.e. relief or lack thereof More or less damages Different injunction –Often both sides can appeal Cross appeals –Cannot appeal just to change reasoning –If won, can defend judgment on appeal with reasons rejected by trial court Need not cross appeal Plaintiff sues on contract and tort theory. Both give same damages. Court grants SJ to defendant on tort theory, but gives judgment to plaintiff on contract theory. Defendant appeals. Plaintiff can argue tort theory on appeal. If in doubt, cross appeal.

4 Appeal: Finality Can only appeal final judgment –Rule is about when, not what But when judgment is final, can appeal all issues Examples of final judgments –Grant of 12(b)(6), grant of SJ, grant of JMOL, judgment in accordance with verdict Examples of non-final judgments –Denial of 12(b)(6), denial of sanctions, discovery rulings, denial of SJ, grant of new trial, denial of JMOL, Interlocutory appeals allowed if both District Court and Appellate Court agree. 28 USC 1292(b) –Some other exceptions

5 Appeal: Waiver & Harmless Error Waiver –Can only raise issue on appeal if raised issue properly in trial court –Cannot challenge legal theory, if did not challenge in answer or 12(b)(6) motion –Cannot challenge sufficiency of evidence, if did not make JMOL motion –Cannot challenge particular evidence if did not object at trial (or before) Harmless Error –Court of appeals only overturns judgment if error is not harmless –Court has to decide whether outcome at trial is likely to have been different if error was not made Did error make real difference at trial? These 2 rules are very important –Litigators need to consider when litigating and considering appeal –Clerks to appellate court judges will use all the time

6 Appeal: Standards of Review I De novo (non deferential) –Court of appeals examines issue afresh and reverses if it disagrees with the trial court, even if it thinks that issue was close call and trial court decision had strong arguments to support it –For legal issues 12(b)(6), SJ, JMOL Purely legal issues in discovery Deferential standards –Court of appeals only reverses if it thinks that the trial court made a serious error –Clearly erroneous standard For trial court determinations of fact –Bench trial –Purely factual aspects of discovery

7 Appeal: Standards of Review II Deferential standards (continued) –Abuse of discretion standard For trial court discretionary decisions –Whether to sanction, if sanction not mandatory –Amount/kind of sanctions –Some evidentiary issues –New trial

8 Appeal Questions I Go back through all the cases read so far in Civil Procedure – If the case was decided by an appellate court, what standard of review did the court use and why? If the case is not explicit about the standard of review, what standard should the court have used? – If the case was decided by a trial court, what standard of review should an appellate court use if the issue(s) resolved in the case were appealed? Note that if more than one issue is appealed, the appellate court may apply different standards of review to each issue. Briefly summarize Anderson and Harnden –In your summary of Harnden, include an answer to Yeazell p. 712 Qs 1f, 2 How could you argue that the district court judge’s error in Harnden was not harmless? In doing so, consider why it is important that an expert report be submitted in the form of an “affidavit or sworn statement.”

9 Appeal Questions II It is relatively easy for a district court’s decision to grant JMOL to be overturned on appeal (because the standard of review is de novo) but relatively hard for a district court’s decision to grant new trial to be overturned on appeal (because that decision is reviewed under the more deferential “abuse of discretion” standard” and may not be reviewable at all until after the second (or third or fourth) trial). Does this make sense? Why or why not? Assuming that the jury returned a verdict for the plaintiff and that the defendant moved for JMOL and new trial, who can appeal in each of the following 4 situations and when. –Judge grants JMOL and conditional new trial –Judge grants JMOL and denies conditional new trial –Judge denies JMOL but grants new trial –Judge denies JMOL and denies new trial

10 Langbein, “German Advantage…” 1) Are you convinced that German civil procedure is better than American civil procedure? Why or why not? 2) What aspects, if any, of German civil procedure do you think are superior to American civil procedure? Could we adopt them without changing other aspects of our procedure? 3) What aspects of American procedure do you think are superior to German civil procedure? Could they adopt them without changing other aspects of their procedure? 4) Do you think that US courts would need a larger or smaller number of judges if we were to adopt German civil procedure ? 5) Do you think a bad judge has a bigger negative effect in Germany or the U.S.? 6) Europeans are generally willing to pay higher taxes to fund higher quality public services. Can that help explain why Germany and the U.S. have different systems of civil procedure?

11 Langbein, “German Advantage…” Control of sequence Discovery Witnesses Experts Appellate review Judicial career