Sanctions Related to Pretrial Conferences

Sanctions can appear within a variety of topics within Civil Procedure on the MBE. One such topic deals specifically with the availability of sanctions against those who do not follow the guidelines for pretrial conferences. 

Let's begin with some generalities and then work towards the specifics. A federal district court may order the attorneys or any unrepresented parties to attend one or more pretrial conferences. On motion or on its own, a court may order sanctions if a party or an attorney fails to appear at a scheduling conference or other pretrial conference. Sanctions might also be ordered if a party or its attorney is substantially unprepared to participate or does not participate in good faith in the conference. Lastly, a failure to obey a scheduling or other pretrial order may lead to sanctions. 

There are a number of available sanctions, and the following are some common sanctions to keep in mind: dismissal of the action in whole or in part; striking the pleadings in whole or in part; holding in contempt of court; issuing a default judgment; prohibiting use of evidence; and staying further proceedings. 

A sanction sometimes tested which can be imposed in addition to any other sanction is the imposition of fees. Specifically, if a party is sanctioned related to a pretrial conference, the court must order the party, its attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred because of any noncompliance. This is a mandatory rule unless the noncompliance was substantially justified, or if other circumstances make such an award unjust. A court's order of sanctions is reviewable under an abuse of discretion standard. 

Post-Trial Motions

The writers of the MBE like to test on the topic of motions. There are pretrial motions, motions made during trial, and post-trial motions. This post focuses on the latter: motions made after the verdict. 

There are two motions to keep in mind here, and the first is a motion for a new trial. A party must make this motion within 28 days of the judgment. There are a number of reasons why a judge might grant this motion. 

Each of the following is a potential ground:

~ the judge gave an erroneous jury instruction

~ new evidence was discovered that could not have been discovered before with due diligence. 

~ misconduct was committed by a juror, party, lawyer, or etc. 

~ the judgment is against the weight of the evidence 

~ damages are inadequate or excessive (more on this later). 

The second post-trial motion to note is the motion for relief from order of judgement. The grounds for this motion are more demanding and the timeline in which to make the motion is longer. Rather than 28 days, this motion can be made any time if due to a clerical error, and within a reasonable time (up to a year) if due to anything allowable other than a clerical error. 

Specifically, the following grounds are allowable:

~ clerical error

~ mistake, or excusable neglect

~fraud, misrepresentation, or misconduct by the opposing party

~ newly discovered evidence that could not have been discovered with due diligence with enough time to make a motion for a new trial and existed at the time of trial

~ a void judgment 

The next topic does not specifically fall under the category of a motion, but is motion adjacent. Rather than moving for a new trial if damages are inadequate or excessive, the court might suggest remittitur and additur. 

With remittitur, the court offers plaintiff the choice as to whether to reduce the damages decided by the jury or to accept a new trial. Additur is similar to remittitur, but with a twist: the defendant is given the option as to whether to increase the damages award or to accept a new trial. An important distinction here is that although remittitur is allowable in both state and federal court, additur is only allowable in state court. The Seventh Amendment prevents a federal court from recognizing additur. 

Avenues of Discovery

The avenues of discovery that are allowable in a civil case aren't all that complex, but the topic is very nuanced and fact intensive. Each type has some specifics tested on the exam. With that, let's examine each type:

Depositions:

Questions in a deposition can be oral or written. The deponent testifies under oath, and the deposition is recorded. Unlike with some other areas of discovery, both parties and nonparties may be deposed. A party, unlike a nonparty, need not be served with a subpoena; a notice of deposition is sufficient to compel the party's appearance. A nonparty must be served with a subpoena or be compelled to attend. If a party does not adequately compel a nonparty to attend the deposition, and the nonparty fails to attend, the party may be liable for costs. You might come across a term called a subpoena duces tecum. That is simply a subpoena requiring the deponent to bring requested materials along to the deposition. 

There are limits to the number of miles that a nonparty will be required to travel to a deposition. Unless agreed otherwise, a nonparty cannot be required to travel more than 100 miles from where the nonparty resides or is employed. A party cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. Depositions cannot exceed one day of 7 hours unless the court orders or the parties stipulate otherwise. 

Depositions serve multiple purposes. Depositions may be used at trial to impeach the deponent and they may be used for any purpose if the deponent is an adverse party. They also may be used for any purpose if the deponent (party or nonparty) is unavailable for trial unless the absence of the party or nonparty was procured by the party seeking to introduce the deposition testimony at trial. 

Interrogatories: 

Interrogatories are written questions answered under oath. Unlike with depositions, interrogatories are sent only to parties. The maximum number of interrogatories is 25 and they must be answered within 30 days from when they are served. A party must answer each interrogatory based upon information reasonably available, and if the answers can be found in business records, the responding party can allow the requesting party to have access to those records, provided that the burden of finding the answer would be about the same for either party. 

Requests to Produce:

A request to produce is as it sounds: it asks a party (not a nonparty) to produce or make available for review and copying documents or things (including if electronically stored) or to permit the requesting party to enter a designated property to inspect, measure, etc. If electronically stored, the information must be produced in the form that the requesting party specifies. That said, the party responding to the request can object. 

The party disclosing the information to the requesting party must respond to the request within 30 days of service, stating that the material will be produced or objecting to its production. Note that although only parties may be served with a request to produce, a nonparty may be served a subpoena for the same purpose. 

Medical Exam (Physical/Mental):

To obtain a medical exam compelling a party (or a person in the party's custody or control) to submit to a medical exam requires a court order. The requesting party must show that the person's health is in actual controversy and that there is good cause for the request. The requesting party chooses the medical professional to conduct the exam. Once there has been a medical exam, the medical professional writes up a report and gives the report to the requesting party. The person undergoing the exam is also entitled to a copy of the report. The party requesting the report must on request produce all medical reports by that party's own doctors about the same medical conditions. Doctor-patient privilege is not an excuse for not producing such reports. 

Request for Admission:

A request for admission is a written request that someone admit certain matters. The responding party must respond in writing within 30 days of service of the request either admitting, denying specifically, or objecting. The responding party may also claim that although a reasonable inquiry to obtain the matter was conducted, that party cannot find enough information from which to admit or deny. A lack of a specific denial will be deemed admitted.

Overarching Principle:

There's an overarching principle to all of the above that is important to keep in mind. If new facts come to light after responding to any discovery request and those facts render the prior disclosure incomplete or incorrect, the responding party must supplement the response to include this new information.

Impleader vs. Intervention vs. Interpleader

Lots of words in Civil Procedure that begin with the letter I. Let's address each of them separately since, other than that common starting letter, they are quite different. 

Impleader: 

You'll sometimes see impleader referred to as third party practice, and there is good reason for this. An impleader claim is one where a defending party would like to bring in to the lawsuit a third party. The defending party is called the "third-party plaintiff," and the third party is called the "third-party defendant." So, there are three parties: the original plaintiff, the defendant now called the third-party plaintiff, and the third party brought in by the third party-plaintiff, called the third-party defendant. 

The purpose of an impleader claim is to shift to the third-party defendant some or all of the liability that the third-party plaintiff will owe to the original plaintiff. Some words that should always come to mind when impleader is at issue are contribution and indemnity. The nature of these claims is derivative. 

An impleader claim is always permissive; there is no such thing as a compulsory impleader. To implead a third-party defendant, the third-party plaintiff must file a third-party complaint naming the third-party defendant and have the complaint formally served on the third-party defendant. This must be done within 14 days of service of the answer to the plaintiff's complaint. After that, permission by court is required. 

Once the third-party defendant is served, the original plaintiff may assert claims against the third-party defendant, and the third-party defendant may assert claims against the original plaintiff, provided that these claims arise out of the same facts as the original claim. It's important to ensure that subject matter jurisdiction is satisfied, but when a claim is made by a third-party defendant against the original plaintiff, supplemental jurisdiction will be a likely avenue if jurisdiction is not satisfied otherwise. Supplemental jurisdiction, however, will not be available for the plaintiff to make a claim against the third-party defendant. 

Intervention: 

Sometimes, a nonparty will want to voluntarily enter into the lawsuit. This nonparty might want to enter as a plaintiff to assert a claim, or as a defendant to defend a claim. Intervention can be either "of right" or "permissive."

Intervention is "of right" if the absentee's interest may be harmed if not joined, assuming that interest is not adequately represented by the current parties. Permissive intervention is allowable if the absentee's claim or defense and the pending case have at least one common question of law or fact. Though permissive intervention is discretionary with the court, it's generally allowable unless it would cause undue delay or if it would prejudice a party. 

As for subject matter jurisdiction, it's important to note that if the intervenor is a plaintiff, supplemental jurisdiction will not apply. 

Interpleader: 

Interpleader applies if separate actions might result in double liability against a party (called the "stakeholder"). An interpleader suit permits the stakeholder to require two or more claimants to litigate amongst themselves to determine which, if any, has the valid claim. There are two separate interpleader procedures. 

The first interpleader procedure is called Rule 22 interpleader. This requires either complete diversity between the stakeholder and all adverse claimants with a claim in excess of $75,000 or a federal question must be at issue. Rule 22, in other words, doesn't change what you've already learned about jurisdiction in federal court. 

Statutory interpleader, on the other hand, does change a few things. Statutory interpleader requires only diversity between two of the claimants and there must be at least $500 at issue. This is sometimes referred to as "minimal diversity" to contrast it with the general rule requiring complete diversity. Service may be nationwide, and venue is proper where any claimant resides. 

A Framework for Analyzing Personal Jurisdiction

What makes the concept of personal jurisdiction complex is that the analysis contains many different components. Having a framework for analyzing it can simplify it quite a lot. Most of the analysis on a bar exam will center on the constitutional requirements but it's important to note that whether there is personal jurisdiction is a two-step analysis. The exercise of personal jurisdiction must both satisfy a state statute (often called a "long-arm statute") and also satisfy the constitutional requirements of due process. 

Each state has its own statute for analyzing personal jurisdiction. Sometimes these long arms statutes are quite broad: they might say something like personal jurisdiction is allowed to the full extent to which the constitution allows it. Other times, situations are specified in which the exercise of personal jurisdiction by a given state is allowable. It's important to note that these more specific long arm statutes do not obviate the need to satisfy the constitutional requirements. 

More important on a test like the Uniform Bar Exam are the constitutional requirements for a state to exercise personal jurisdiction. The question to ask here is whether the defendant has such minimum contacts with the forum state such that jurisdiction does not offend traditional notions of fair play and substantial justice. Seems simple enough? Not so fast. 

To determine whether the minimum contacts standard is satisfied requires analyzing three separate components: contacts, relatedness, and fairness. Let's take each in turn.

Contacts: There must be relevant minimum contacts between the defendant and the forum state. Two factors will determine this component: purposeful availment, and foreseeability. For purposeful availment, the contact must result from Defendant's voluntary act. The defendant must target the forum state, though that doesn't mean that the defendant, necessarily, needs to have been present in the forum state. It's possible to target without being present if the defendant, for example, intentionally causes an effect in the forum. In addition, you'll want to determine whether Defendant's contacts with the forum state made it foreseeable that Defendant could be sued there.

Relatedness: After determining that there are minimum contacts using the analysis above, next determine whether Plaintiff's claim arises from or relates to Defendant's contacts with the forum state. If that type of relatedness is present then the type of personal jurisdiction is called specific jurisdiction. If that type of relatedness is not present, then the type of personal jurisdiction is called general jurisdiction. 

Only if it's determined that there's specific jurisdiction, then it's time to move on to the next step analyzing whether personal jurisdiction would be fair under the circumstances. If, on the other hand, it's determined that there's general, rather than specific jurisdiction, then personal jurisdiction over Defendant is only proper if Defendant is "at home" in the forum state. A good test for "at home" is to determine where Defendant is domiciled. 

Fairness: It's important to reiterate here that the fairness element is only analyzed in specific jurisdiction cases. In general jurisdiction cases where the defendant is deemed to be 'at home" in the forum state, the fairness analysis is not necessary. For fairness to be satisfied, the forum need not be the most convenient for Defendant; rather, Defendant, to prove the forum is not fair, will need to show that the forum puts Defendant at a severe disadvantage in the litigation. Further, there may be an interest that the forum state has in providing a forum for its citizens; that, too, will weight against an argument by Defendant that the forum is not a fair one. Lastly, Plaintiff's interest in having the forum state as the place of litigation must be also be considered and weighed against Defendant's claim of unfairness. 

MBE Tip (Class Actions)

Imagine that class action certification is either granted or denied. If a party to that decision wants to appeal the decision, must the appellate court permit the appeal? To the contrary, must the appellate court deny the appeal until there is a final judgment in the non-class-action lawsuit?

The answer is neither. Instead, a court of appeals has the discretion to permit an appeal from an order granting or denying class action certification. That's to say, the "final judgment rule" does not apply to the denial or grant of class action certification. As to the procedure, a party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered (with certain exceptions extending the time to 45 days if the United States (or a agency/officer of the United States) is a party to the lawsuit.

Depositions, Interrogatories, and Medical Exams

There's a lot to know about discovery for Civil Procedure on the bar exam. Three avenues for discovery (though this is not an exhaustive list) are depositions, interrogatories, and medical exams. Each has nuances to keep in mind. First, depositions.

The questions in a deposition can be either oral or written; both parties and non-parties may be deposed, and all are under oath while answering deposition questions. A subpoena is not required to depose a party to the lawsuit; a notice of deposition is sufficient. In contrast, a non-party must be served with a subpoena. 

Unless a non-party agrees otherwise, the farthest a non-party can be required to travel to a deposition is 100 miles from where the non-party resides or is employed. The party taking the deposition cannot take more than 10 depositions nor may the party depose the same person twice without court approval or stipulation. Depositions cannot exceed seven hours in the same day unless the court orders otherwise or unless the parties stipulate otherwise. 

Depositions serve multiple purposes: first, they can be used to impeach the deponent at trial. They can be used for any purpose if the deponent is an adverse party, and they can be used for any purpose if the deponent (party or non-party) is unavailable at trial unless that absence was procured by the party seeking to introduce the deposition testimony. 

Another avenue for discovery is interrogatories. Interrogatories are written questions that are answered in writing under oath. In contact to depositions, interrogatories are sent only to parties, never to non-parties. Although this may vary by court order or stipulation, the maximum number of interrogatories is 25, including subparts. 

Interrogatories must be answered within 30 days from the time they are served upon the recipient, and they must be answered based upon information reasonably available. Sometimes, answers to interrogatories might be found in business records. If the burden of finding such answers would be about equivalent for either party, the responding party can allow the requesting party to have access to those business records.

Another avenue for discovery is the medical exam (either physical or mental). A court order is required to compel a party (or a person in the party's custody and control) to submit to a medical exam. If making such a request, there are requirements: A party must show that the person who will be subject to the exam has a health issue that is in controversy and that there is good cause for requesting the exam. The requesting party chooses the licensed medical professional to perform the exam. 

Once the court orders a medical exam, the medical professional will write a report and then provide that report to the requesting party. The person undergoing the exam is also entitled to a copy of the report, if requested. 

If that party then receives the report, that party must (on request) produce all medical reports about the same condition by the party's own doctor. Any doctor-patient privilege that the party might have had with that doctor is waived regarding that specific medical condition. 

Class Action Lawsuits

Both procedural and substantive aspects are tested in the area of class action lawsuits. This post will cover both. 

A class action lawsuit is distinguished from other types of lawsuits in that in a class action lawsuit, representatives sue on behalf of a group.  There are four requirements that must be met to qualify for a class action lawsuit.

First, there must be so many class members that the traditional rules of joinder would not be practicable. There also must be issues in common to all class members. It also must be true that the class representative's claim are typical of the claims of the class. Lastly, the class representative must fairly and adequately represent the class. 

If the four requirements above are satisfied, next is to ensure that the action falls within an acceptable type of class action lawsuit. There are 3 acceptable types. In type 1, class treatment is necessary to avoid prejudice either to class members or to non class members. In type 2, the class action seeks an injunction or declaratory judgment because defendant treated all class members alike. In type 3, common questions must predominate over individual questions, and, thus, a class action is the more appropriate method to handle the dispute. More to say on this third one in a bit. 

Procedurally, a case is not a class action until the court grants the motion to certify it as a class action. Likewise, the court must define the class ( along with class claims, issues, and defenses) and appoint class counsel who must fairly and adequately represents the interests of the class. An immediate appeal as to the court's decision on certification (an interlocutory appeal) is allowable.

In a type 3 class action lawsuit (and only in that type), the court must notify class members that they are in a class. The purpose of the notice is to allow reasonably identifiable members of the class to opt out. The notice informs the members that they will be bound by the judgment if they don't opt out, and that they can enter a separate appearance through counsel. 

Settlement of class action lawsuits vary a bit from settlement of non class action lawsuits. Court approval is required to settle, and the court must give notice to the class members to get feedback on whether the case should be settled or dismissed. In a type 3 class action lawsuit, the court also might refuse to approve the settlement unless members are given another opportunity to opt out. 

There are a few nuances to understand about subject matter jurisdiction in class action lawsuits. Federal question jurisdiction is the same as it is for non class action lawsuits. If jurisdiction is based on diversity, only the citizenship of the class representative is considered and only the class representative's claim must exceed $75,000. 

Also worth noting is the Class Action Fairness Act ("CAFA"). Under CAFA, a federal court can hear a class action (regardless of federal question or diversity jurisdiction) if there are at least 100 class members,  any class member (not just the representative) is of diverse citizenship from any defendant, and the aggregated claims of the class exceed 5 million dollars. And under CAFA, any defendant (even one domiciled in the state where the case is brought) may remove the case from state to federal court 

Pleadings

As with so much in Civil Procedure, there's a lot to cover on the topic of pleadings. I think the best way to organize this topic is to consider what you need to know about plaintiff's complaint, and then to consider what you need to know about defendant's answer. Then, a bit about amending pleadings. To begin, plaintiff's complaint. 

There are 3 things that must be included in the complaint. First, a statement of grounds for subject matter jurisdiction. Next, a short and plain statement of the claim showing that plaintiff is entitled to relief. And, lastly, a demand for relief sought. There is one exception to keep in mind: when a complaint alleges fraud, mistake, or special damages, the complaint must be pleaded with more detail. It's said that in such instances, the complaint must be pleaded with particularity or specificity.

When stating a short and plain statement of the claim, plaintiff must plead sufficient facts to support a plausible claim. If defendant believes that plaintiff has not done that, an opportunity arises for defendant to file a 12(b)(6) motion to dismiss the complaint for failure to state a claim. 

Once the complaint has been served to defendant, defendant has 2 options. Defendant can answer the complaint, or respond by motion. Regardless, defendant must respond no later than 21 days after being served with process. That time is extended if defendant waived service; if waived, defendant has 60 days to respond from when plaintiff mailed the waiver form.

A variety of motions are available to defendant when responding to plaintiff's complaint. A rule 12(e) motion for a more definite statement is made prior to an answer and is used when the complaint is so vague or ambiguous that defendant cannot respond. A rule 12(f) motion to strike asks the court to remove redundant or immaterial things from a pleading. 

A 12(b) motion can set forth a variety of defenses. Some of those defenses are waived if not included in the first response to the complaint. Those waivable defenses are lack of personal jurisdiction, improper venue, improper process, and improper service of process.

Other defenses are not waived. Both the defense of failure to state a claim and the defense of failure to join an indispensable party can be made as late as at trial. A defense of lack of subject matter jurisdiction may be raised at any time. 

If defendant makes a 12(e), 12(f) or 12(b) motion and that motion is denied, defendant must then serve an answer no later than 14 days after notice of the denial. 

Next is the answer. In the answer, defendant either admits some or all of the allegations in the complaint, or denies some or all of the allegations. Another option is for defendant to state that there is insufficient knowledge to either admit or to deny some or all of the allegations. Any failure to deny an allegation will be deemed an admission except regarding the amount of damages.

Defendant can also raise affirmative defenses in the answer. When defendant asserts an affirmative defense, there is no need for plaintiff to respond; the allegations in defendant's answer are deemed denied. 

One final area worth discussing here is the amendment of pleadings. Plaintiff has a right to amend a complaint once no later than 21 days after defendant serves the first response. The defendant has a right to amend an answer once no later than 21 days after serving it. Importantly, if defendant's first response was an answer that did not raise a waivable defense (for example, lack of personal jurisdiction), defendant has the right to amend that response to include the defense. In other words, the defense is not waived if the answer is properly amended. 

Once the 21 days to amend is up, the rules change. To amend after this period, the amending party must seek leave of court (or get written consent from the opposing party). The court will grant leave to amend if "justice so requires". 

It's possible that a party might want to amend a pleading after the statute of limitations has run on a claim. This is possible, provided that the amended pleading relates back to the original pleading. The amended pleading will relate back to the original pleading if the amended pleading concerns the same conduct, transaction, or occurrence as the original pleading. 

The rules above relate to parties amending claims within a pleading. There may be instances, however, when plaintiff wants to amend a pleading to change a defendant. If the statute of limitations has run on the claim, then to do so, relation back will be required. Such an amendment will relate back if the amendment concerns the same conduct, transaction, or occurrence as the original claim, the new defendant had knowledge of the case such that the new defendant will be able to avoid prejudice, and the new defendant knew or should have known that, but for a mistake, the new defendant would have been named originally. Put simply, these elements require that plaintiff sued the wrong defendant first, and that the right defendant knew this. 

Service of Process

I'd like to try to hit upon in this post all the little nuances that the MBE might test on the topic of service of process. And it all begins with the reasons why there is even a requirement that a defendant is served with process. 

A defendant is entitled to notice that he/she has been sued. The notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the action." Both a summons and a copy of the complaint must be served. 

Who may serve process encompasses a rather large set of people. Anyone who is at least 18 years old and is not a party to the action may serve process. This process must be served (if the defendant is to be served within the United State) within 90 days of the filing of the complaint. The 90 period may be extended for good cause. 

There are numerous ways by which process might be served. The simplest is personal service. For personal service, process is given to the defendant personally. A commonly tested method other than personal service is substituted service. Substituted service, as the same suggests, is a substitute for personal service. Service is effected at the defendant's "usual place of abode," with someone of suitable age and discretion who resides there. Substituted service may be used even if personal service is possible. 

Another method for serving process is to deliver to the defendant's agent. This is most common when service is in the scope of agency (for example if the defendant, by contract, appointed an agent to receive process.)

It's important to note that along with the federal rules above, methods for serving process that are permitted by the law of the state where the federal court sits or the law of the state where service is made are also permitted. 

The rules differ a bit when serving process on a business organization in the United States rather than on an individual. A business organization may be served by delivering a copy of the summons and complaint  to an officer (for example, the CEO), or by using any method permitted by either the state where the federal court sits or the state where service is to be made. 

If serving a minor or incompetent person in the United States, service may be made only by a method permitted by the law of the state in which service is to be made. if serving anyone (adult or minor) in a foreign country, any method allowed by international agreement may be used. Lacking such an agreement, it's allowable to look towards both US law and foreign law provided that any method used is subject to the constitutional requirement that the method is reasonably calculated to provide notice to the affected party. 

Service of process can be waived. Plaintiff requests a waiver from defendant by mailing defendant a notice and a request to waive service. Plaintiff must include a copy of the complaint and two copies of a waiver form, with a pre-paid means of returning the waiver. Defendant then has 30 days to waive (if located within the United States) or 60 days (if located outside of the United States). Waiver is effective once plaintiff files the waiver with the court.

If defendant chooses not to return the waiver form (so that plaintiff is required to serve defendant personally or by substituted service), defendant will be required to pay the costs of service if defendant did not have good cause for not returning the waiver. 

As mentioned above, personal service occurs when the defendant is served personally. There's an important exception to keep in mind: if the defendant goes to a state to appear as a party, witness or attorney in a different civil case in that state, defendant cannot be served with process for a civil case in federal court in that state. This is a type of immunity from service that has shown up in questions on the exam. 

Subpoenas

There's likely to be a couple points on the MBE to grab by knowing a few things about subpoenas. 

The purpose of a subpoena is to require a person to attend a trial, hearing or deposition. But the extent to which this demand is allowable has its limits. Specifically, a subpoena can demand attendance of someone if the place at where the person will be required to attend is within 100 miles of where the person resides, is employed, or regularly transacts business in person. Don't confuse this one with a similar 100 mile "bulge rule" which instead relates to service of process. 

In addition to the above, a subpoena can demand attendance if the place at where the person will be required to attend is within the state where the person resides, is employed, or regularly conducts business in person. Importantly, though, this only applies if the person is a party to the lawsuit (or a party's officer) or if the person required to attend is a non-party and would not incur substantial expense in attending. Might be noted that this additional rule for parties to the lawsuit only applies for trials or hearings; there's no need for a subpoena to compel a party to the lawsuit to attend a deposition; others rule cover that. 

In addition to requiring a person to attend a trial, hearing, or deposition, a subpoena may also require production of documents, electronically stored information, or tangible things, at a place within 100 miles of the place where the person resides, is employed, or regularly transacts business in person. A subpoena may likewise require the inspection of premises at the premises to be inspected. 

I wouldn't anticipate a lot of questions on this topic, but it's been tested in the past. And what's been tested in the past is a good indication of what might be tested in the future. 

Appeals

Questions about appeals show up both on the MBE and on the MEE. Interlocutory appeals is one such area and things can get complex when there are multiple claims/multiple parties involved.

The general rule is that appeals from the decisions of federal district courts can only be taken when there is a final judgment in the case. This is unsurprisingly called the "final judgment rule," and it requires that appeals are taken only once all issues in the suit have been finally determined by the district court. 

But when multiple claims/parties are involved, a question might present in which at least one but not all of the claims have reached a conclusion. And then it's not as easy to determine whether there has been a "final judgment" such that an appeal is allowable. 

We're given guidance in the Federal Rules. A district court decision adjudicating fewer than all the claims in an action is not final unless the district court (1): expressly determines that there is no just cause for delay; and (2): directs entry of a final judgment. Ultimately, the appellate court will have the final decision as to whether the appeal is appropriate.

These questions will often turn on the term "no just reason for delay." The district court judge will make this determination with an inquiry into the following factors:

~the length of time it might take to resolve the case

~the hardship to a party if an immediate appeal is not allowed

~the relationship between the claims that have concluded and the claims that have not yet concluded

~whether the appeal can be fairly decided even though other issues in the case have not yet been adjudicated.

As is apparent, both judicial administrative interests as well as more general equitable points are considered. Consider when approaching such questions whether not allowing an immediate appeal of a given claim (among a group of claims) would be unfair to the litigants, while also considering the more practical administrative consequences of allowing or disallowing an immediate appeal.  

MBE Logic

Imagine a question on the MBE in Civil Procedure about peremptory challenges. Jurors are stricken because of their age and the question looks towards whether such a challenge is valid.

Two answers follow:

(1) Yes, because peremptory challenges may be used to strike potential jurors for any reason.

(2) Yes because peremptory challenges may be used to strike potential jurors based on their age. 

You might well know from studying this area that (1) is not correct. There are some (though not many) constitutional limitations to peremptory challenges. But for the purpose of this post, assume that both answers look equally good. There may be a way to discern the correct answer by using a bit of logic.

Let's first assume that (1) is true and that peremptory challenges may be used to strike potential jurors for any reason. If peremptory challenges may be used to strike potential jurors for any reason, then (2) is correct as well. Because if peremptory challenges may be used to strike potential jurors for any reason, then they they may be used to strike potential jurors based on age: after all, age is a reason!

But you cannot have 2 correct answers on the MBE. Since (1) being correct would require (2) to be correct, (1) is therefore incorrect. 

The same does not follow in the reverse. Claiming that peremptory challenges may be used to strike potential jurors based on age does not require that one accept that these challenges can be used for any reason. In other words, claiming that (2) is correct does not require that (1) is also correct. 

Because claiming that (1) is correct requires that (2) is also correct, but claiming that (2) is correct does not require that (1) is correct, (2) is the correct answer. 

The above would all be quite a lot if it only applied to peremptory challenges. But far from it. This type of logic is another tool you can use when you've narrowed it down to 2 answers. So often students tell me "I can get it down to 2." This type of reasoning will help you to better get it down to 1. 

Claim Preclusion vs Issue Preclusion

I'm actually surprised I haven't posted on the topic, but better late than never. This is actually quite a complex area of law; it's also tested often enough that it's worth knowing well:

First, res judicata (claim preclusion). Under this doctrine, once a final judgment on the merits has been rendered on a particular cause of action, plaintiff is barred from trying the same cause of action in a later lawsuit. 

Claim preclusion involves two doctrines: merger and bar. Assume first that plaintiff wins case 1. In that instance, the first suit merges and defendant is prevented from bringing a second suit on that same claim against the same plaintiff. If the plaintiff instead loses case 1, plaintiff is barred from bringing a second suit on that same claim against the same defendant.

An essential component of the analysis above is to determine what is meant by "the same claim." Modern courts apply a transactional test is determining this.  Namely, when a valid and final judgment rendered in an action extinguishes the plaintiff's claim (by either merger or bar) the claim extinguished includes all rights of the plaintiff with respect to all or any part of the transaction or series of transactions out of which the action arose. It's a bit tough to apply, for sure. 

One helpful tip to note is that where two suits involve a single physical accident, the court will almost always treat both damages and personal injuries from that accident as arising out of the same transaction (in other words as a single claim for purposes of claim preclusion). 

One other point worth noting is that where one person (call that person "x") is vicariously liable for the conduct of another person (call that person "y") and if y is sued, merger or bar will often apply to x as much as it'll apply to y. In other words, if y wins the suit, not only will the injured person be barred from suing y again on that same claim, but the injured person will likely be barred from suing x on that same claim as well. There are exceptions to this rule, but it does often apply.

Collateral estoppel (issue preclusion) is similar to claim preclusion, but far from identical. Issue preclusion applies to prevent relitigation of an issue that was actually litigated and was essential to a prior judgment. In other words, collateral estoppel is focused on the issues involved in a claim whereas res judicata is focused on the claim itself. With issue preclusion, once a final judgment has been rendered for plaintiff or defendant, that judgment is conclusive in a subsequent action on a different cause of action as to issues actually litigated and essential to that prior judgment.

There's a concept seen in issue preclusion (and possibly in claim preclusion, though the MBE has traditionally tested this with issue preclusion) called the mutuality principle. Traditionally, a party to the second lawsuit who was not a party to the first lawsuit was prevented from gaining the benefit of preclusion. However, modern courts aren't so certain. Some courts apply what's called "non-mutual issue preclusion" and those that do would allow a party to the second lawsuit who was not a party to the first lawsuit to benefit from preclusion (often issue preclusion). 

Jury Instructions

Lots of nuances for them to test in Federal Civil Procedure on jury instructions. The questions will fall into 3 categories: requests for instructions, the instructions, and objections to instructions. 

At the close of the evidence or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give. In addition, if the requests are not made at the close of evidence or prior, then after the close of the evidence, a party may file requests for instructions on issues that could not reasonably have been anticipated by an earlier time. Finally, with permission by the court, a party may file untimely requests for instructions on any issue.

The court itself has obligations in regards to jury instructions as well. The court must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments. Further, it must give the parties an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered. The court may instruct the jury at any time before the jury is discharged.

If a party is to object to jury instructions, the party who objects to an instruction or the failure to give an instruction must do so on the record, stating speficially the matter objected to and the grounds for the objection. The objection will be timely if made either when the court provides the opportunity to do so, or if the party was not provided the opportunity to object, if the party objects promptly after learning that an objectionable jury instruction has been given or refused.

Lastly, it should be noted that even if an instruction is not objected to as outlined above, a court may consider the instruction as a plain error if the error affects substantial rights. 

Time Limitations for Appeals

Civ Pro on the MBE can get very technical. I expected it might not but now that we've got enough released questions, it seems the writers don't shy away from the very specific time limitations and such. One area where this could come up is with appeals.

The beginning of an appeal occurs when a notice of appeal is filed with the district clerk within 30 days from the entry of the judgment appealed from. The timeline is extended to 60 days if one of the parties is the United States, a United States agency, or a United States officer/employee sued in an official capacity. I've never seen that 60-day nuance tested, however. 

A variety of motions can affect the 30-day rule, though. If a timely renewed motion for judgement as a matter of law, a motion for a new trial, or a motion to set aside/amend the judgment is made (among a few others), the 30-day limitation no longer applies. Rather, a 30-day period will begin to run only upon an entry of an order disposing of the motion.

Extensions to the 30-day period are allowable under limited circumstances. The district court may extend the time to file a notice of appeal if a party moves for the extension no later than 30 days after the time to file the notice of appeal has expired. In addition, an extension is allowable regardless of whether the motion is filed no later than 30 days after the time to file the notice of appeal has expired if there is a showing of excusable neglect or of good cause. 

In limited situations, the court also may reopen the time to appeal for a period of 14 days after the date when its order to reopen is entered. These situations are as follows: the party seeking appeal did not timely receive notice of entry of judgment; the motion for extension is filed within 180 days of the judgment or within 14 days of receiving notice of judgment, whichever is earlier; and the opposing party will not be prejudiced. 

Preliminary Injunctions vs Temporary Restraining Orders

There are, for sure, similarities between preliminary injunctions and temporary restraining orders. The differences tend to show up a bit more on the MBE, but first it's important to understand some commonalities:

Both temporary restraining orders ("TRO") and preliminary injunctions are types of injunctions. An injunction is an equitable remedy by which a person is ordered to act or ordered to refrain from acting. Injunctions are often granted while a case is still pending (sometimes referred to as "interlocutory injunctions") and are often granted to maintain the status quo until a trial on the merits is completed. 

Temporary Restraining Orders: There are some strict requirements when seeking a TRO. First is that waiting for a preliminary injunction is not feasible since irreparable injury will occur before the hearing on a preliminary injunction. Generally, the adverse party (the party not seeking the TRO) must be given oral or written notice of the TRO hearing, but not always. A TRO may be imposed without notice of a hearing if the moving party (the party seeking the TRO) states specific facts in an affidavit or verified complaint of the irreparable injury that he/she will suffer if the TRO is not granted. In addition, the moving party must certify in writing the efforts made to notify the adverse party as well as the reasons why notice should not be required. Lastly, the moving party must provide security to pay for any damages incurred by the adverse party if the court later finds that the adverse party was unlawfully restrained. 

A nuanced point to keep in mind is that although a TRO can be issued without notice (if those requirements above are satisfied), a person must have actual notice before the person can be held in contempt for violating the TRO. 

As for timing, a TRO lasts for 14 days. It may be extended for another 14 days, but no longer than that. In other words, 28 days in total, at most.

Preliminary Injunctions: As with a TRO, a preliminary injunction is meant to preserve the status quo before trial. Unlike with a TRO, notice is required. The adverse party must be given notice and an opportunity to be heard. A preliminary injunction commonly will be granted if the following conditions are satisfied: the plaintiff will suffer irreparable harm if the injunction is not granted; the harm to the plaintiff outweighs the harm to the defendant; the plaintiff shows that he/she is likely to be successful on the merits; and the public interest favors granting the injunction. 

Measuring irreparable harm can be tricky, but if the party seeking the injunction has an adequate remedy at law (look for damages) then it's highly unlikely that the condition of irreparable harm is satisfied. 

The Work-Product Privilege

In discussing the privilege for work product, it's important first to discuss some general rules about discovery. Parties may obtain initial discovery regarding any non-privileged matter that is relevant to any party's claim, or defense (unless the use would be used solely for impeachment). This includes the nature, description, location, etc., of any documents or other tangible things as well as the identity and location of people who might know of any discoverable matter. 

There are some privileges, however, that will allow a party to withhold otherwise discoverable matter, and one of those privileges is the work-product privilege. Under this privilege, certain immunity from discovery is given to materials created by the attorney for purposes of trial.

This privilege is not necessarily absolute, but it can be. Documents containing subjective thoughts. mental impressions, legal theories, and legal conclusions/opinions of a party's lawyer are given absolute immunity from discovery. In other words, these won't be discoverable by the opposing side or at least it's a near certainty that they won't be. On the other hand, other documents prepared for litigation by either party (for example, a witness statement of an unavailable witness) are still granted immunity, but this immunity is qualified. And qualified immunity can be overcome if the party seeking discovery can show both that there is a substantial need for the material and that it would be an undue hardship to obtain this material through other means.

Qualified immunity requires a balance and there are factors to guide that balance. To determine whether it would be an undue hardship to require a party to obtain the material by other means the court will determine the cost of obtaining the material through other means other than by discovery of the material. The court will also consider the finances of the party seeking discovery. And finally, in those specific instances in which the material sought is a transcript of an opposing witness's statement, the court will consider the hostility of the witness to the party seeking discovery of that statement.

Motion for Relief from Judgment (Federal Civil Procedure)

A motion for relief from judgment is one of the many motions tested in Federal Civil Procedure on the MBE. As with all motions, there are very specific elements to know. Most likely to be tested are the grounds for bringing this motion.

First, it's worth knowing that a clerical error may be corrected at any time on motion of the court or any party. A motion to to amend a final order may be brought under the following circumstances: new evidence has been discovered that was not previously available; there has been an intervening change in controlling law; there is a need to correct a clear error of law or fact; or there is a need to prevent manifest injustice. 

This motion to amend a final order must be brought within 28 days of the order to which the motion is attacking. All is not lost after 28 days, however. At that point a party must seek relief from judgment or appeal the order. On motion, a party may receive relief from final judgment for any of the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that by due diligence could have been been discovered in time to move for a new trial; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) a claim that the judgment is void such that there was a fundamental flaw or deprivation of due process; (5) a claim that it is no longer equitable that the judgment should have prospective application; (6) the judgment has been satisfied, released, or discharged, or (6) any other reason justifying relief from judgment. That last one is sort of a "catch-all" provision giving quite a bit of flexibility in granting the motion for relief from judgement.

For claims 1, 2, and 3, the motion must be made within a reasonable time not to exceed one year; for other grounds (4, 5, and 6), the motion must be made within a reasonable time. Also worth noting that a court can also use its own discretion in an independent action to relieve a party from a judgment or order. An advantage of this independent action is that the time limits stated above do not apply. However, if a motion to set aside the judgment (as outlined above) has already been rejected, an independent action to do the same must be rejected as well.

Motion for Judgment as a Matter of Law/Motion for a New Trial

One thing I've learned about the MBE test writers when it comes to Civil Procedure is they really seem to like testing motions. Motions show up time and again in the practice questions. Know them very well.

One motion is known as a motion for judgment as a matter of law. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for a party on that issue, the court may grant a motion for judgment as a matter of law as to any claim or defense that would have required a favorable ruling on that issue. Such a motion may be made at any time before the case is submitted to the jury. 

There will of course be times when the court denies this motion. Whenever the court denies the motion for judgment as a matter of law, the court is considered to have submitted the action to the jury subject to the court's later considering the legal questions raised by the motion. No later than 28 days after the entry of judgment, the movant who originally moved for a motion for judgment as a matter of law may file a renewed motion for judgment as a matter of law. In that motion, the movant may include an alternative or joint request for a new trial. The original motion for judgment as a matter of law is a prerequisite to the later renewed motion. There can be no renewed motion if there was no earlier motion.

Importantly (since this is tested often), is that if the court grants the renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment as a matter of law is later vacated or reversed on appeal. 

One last point, and here assume that a motion for judgment as a matter of law is denied. The prevailing party (the non-moving party) may be concerned that the decision to deny the motion might later be overturned on appeal. That party may assert grounds entitling it to a new trial should the appellate court court conclude that the trial court erred in denying the motion. Then, if the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment.