Civ Pro-Waggoner- Fall 2006-Lyman

Civ Pro-Waggoner- Fall 2006-Lyman - Things to think about....

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Unformatted text preview: Things to think about. 1. Rule 12 motion? 2. Request admission rule 36 or 37? Admit our side and ask other side to admit stuff we think is obvious. 3. Rule 11 motion? Serve and give 21 days to fix problem before it is filed with court. 4. Condition precedent for filing claim? Affirmative defense or 12(b)(6). 5. Can issue be stipulated by parties? Also, court order. 6. Can issue be avoided by removing specific claim? 7. Is person part of party under Upjohn? 8. Privilege waived by disclosure to third party? 9. Ask friendly witness to get own statements and give to you? a. Threaten them with subpoena 10. If there is no evidence, party with burden of production loses. Make SJ motion. a. If not granted, JML, and new trial motions and close of evidence 11. Is SOL has run, look at relation back of amendments 12. You have to ask for a jury, it is not automatic. 13. Did trial judge deny jury trial when he should have granted it? 14. Can always ask for information or documents informally. 15. There should not be an attorney client privilege problem in a legal malpractice suit. a. Documents are clients anyway. 16. If a party moved for JML after verdict, complain b/c they should have done it at close of all evidence 17. Statute of limitations is an affirmative defense that should have been pleaded or amended, not brought up after verdict 18. Judge has broad discretion in granting new trial, only set aside for clear abuse of discretion a. JML or JNOV is not given the same deference by appellate courts 19. If it is impossible to not get biased jury, ask for no jury. 20. Unsuccessful SJ motions may be the basis for appeal once final judgment is in. a. Or they can be renewed as JML, DV, JNOV Civil Procedure -> Law of Remedies not criminal- before and after trail, not trial itself- brought by private entity or govt in civil action- injunctions and damages- punitive damages something criminal preventative Subject Matter Jurisdiction- whether court can hear certain type of dispute o general jurisdiction anything unless specifically barred o limited jurisdiction cases specifically authorized by statute all federal cases Personal Jurisdiction- court must have jurisdiction over parties defendant especially Venue- place of trial Service of Process- notify defendant that action has begun o complaint file with court o summons sent to clerk of court served to defendant 1 Pleadings Complaint- Short and plain statement of the claim showing jurisdiction, that the pleader is entitled to relief, demand for judgment/relief (different types relief OK) - 8(a)- Alternative claims and defenses OK, even if inconsistent - 8(e)(2)- Vague pleadings allow for easy addition later o Makes relation back of amendments easier also 15(c) o Detailed pleadings can serve as discovery get answers from opponent Response- Motions request the court do something o Unrelated to claim, i.e. jurisdiction - 12(b)(1) o More definite statement of complaint -...
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Civ Pro-Waggoner- Fall 2006-Lyman - Things to think about....

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