1. 1 Agenda for 12th Class Admin – Handouts – Name plates – Lunch. W 10/23 – M 10/28 class will start at 1:25 – A Civil Action screening W 10/30 7:30PM WCC 2004 – Court visit Tuesday, November 19 Roughly 1:30-4PM, but keep all afternoon clear Intro to fees and joinder Review appeals & German procedure 1995 Exam II ADR Settlement

2. Assignment for M 10/28 – Fees Shavell handout Problems on last page of Shavell handout Finish A Civil Action – Pay special attention to fees – Given the settlement, how did they calculate how much Schlichtmann and the other lawyers received? – Joinder FRCP 13, 14, 18, 20, 21 Yeazell 793-97, 812-19 Pp. 816 Q5 Pp. 818ff. Qs 1-2 Optional: Glannon Chapters 13-14 (Joinder) 2

3. Next Class I – Fees English rule. Loser pays other side’s attorney fees – If plaintiff wins 90K damages and both plaintiff and defense pay their lawyers 30K » Then plaintiff net winnings are: 90K = 90K damages – 30K paid to plaintiff’s lawyer + 30K reimbursement of lawyer’s fees from defendant » Defendant net losses are: 150K = 90K damages + 30K paid to defense lawyers + 30K reimbursement of plaintiff’s lawyer’s fees – If plaintiff loses ($0 damages) » Then plaintiff net losses is 60K 30K to plaintiff lawyer + 30K to defendant for its lawyer’s fees » Defendant net loss is $0 30K paid to defense lawyer – 30K reimbursement from plaintiff – American rule, no reimbursement of other side’s lawyer’s fees » Except when explicitly allowed or mandated by statute 3

4. Next Class II – Starting 2 nd half of course Jurisdiction – Personal jurisdiction » If state court, which state’s court » If federal court, federal court in which state – Subject matter jurisdiction » Federal or state court Choice of Law – If applying state law, which state’s law Erie – When apply state law in federal court in diversity case Complex litigation – Joinder, class actions – Assumption – one plaintiff, one defendant, one claim » unless rules specifically allow more – In general, rules allow joinder if claims and/or parties are closely related » But what “closely related” means depends on context – Joinder does NOT imply jurisdiction 4

5. Review of Last Class I – Appeals – Standards of Review De novo. Always 12(b)(6), Summary Judgment, JMOL Abuse of discretion – Whether sanctions, if sanctions discretionary – Amount of sanctions – Most issues relating to admissibility and discoverability – BUT de novo review of legal foundation for exercise of discretion » Appellate court reverses if it thinks district court misunderstood legal standard for exercising discretion E.g. conduct that potentially subject to Rule 11 sanctions. Christian E.g. Administrative law background of Rule 37 sanctions. Stefan Clearly erroneous -- factual findings » Bench trial, » If hold evidentiary hearing relating to other issues (e.g. jurisdiction) 5

6. Review of Last Class II Appeals (cont.) – 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.” – German civil procedure Judicial control of fact finding – Judge questions witnesses – Judge selects experts – judge decides sequence Career judiciary De novo appellate review – But based on trial judge’s summary of evidence Possibly cheaper and more accurate Depends on adequate supply and quality of judges 6

7. 1995 Exam, Part II If you would like to me to review your answer with you – Please type or revise an answer which takes into account today’s class discuss – Email me to set up an appointment 1995 Exam, Part II 7

8. 8 Arbitration I Adjudication by private judge under rules agreed to by parties Must be agreed to by parties – Pre-dispute. In contract, before dispute arises – After dispute arises Arbitration is legally binding – Party that agreed to arbitration and then changes its mind can be compelled to arbitrate Court will dismiss case Arbitrator can enter equivalent of default judgment – Arbitration awards are enforceable in court – Arbitration awards are not generally appealable Arbitration may be through established organizations (non-profit or for profit) – American Arbitration Association, JAMS – Organizations have panels of arbitrators and set rules

9. 9 Arbitration II Parties to arbitration generally have control over who arbitrators are – Either agree on arbitrators in advance Or agree to procedure for selecting arbitrator – E.g. Start with list and each side strikes those like least, etc. – Procedure may be set out in organization rules (AAA or JAMS) or may be negotiated by parties – Often arbitrators are retired judges, but can be anyone E.g. Writers Guild has writers as arbitrators Parties to arbitration generally have control over procedures – AAA and JAMS have rules that can choose – Or can set out own rules E.g. Writers Guild. Everything in writing, no oral hearing or testimony

10. 10 Arbitration III Arbitration is controversial – Especially in consumer contracts Where business may put arbitration clause in form contract stipulating defendant friendly arbitrators and procedures (e.g. no class actions) Federal law promotes arbitration – Federal American Arbitration Act is interpreted to require states to enforce arbitration agreements, except in rare circumstances Agreement was unconscionable or otherwise defective under ordinary state law contract principles (e.g. fraud, duress), or Procedure violative of due process (e.g. biased judges) – Very hard to prove, even though probably often true, because business generally chooses arbitration procedures, including rules for selection of arbitrators – Businesses are “repeat players” » So arbitration providers have incentive to please business, otherwise business will choose other arbitration provider in future.

11. Settlement – Settlement Problems – Settlement and A Civil Action In what ways does A Civil Action confirm the validity of Polinsky’s economic model of settlement? In what ways does A Civil Action contradict Polinsky’s economic model of settlement or suggest that the real world is more complex than that model?