Civ_Pro_Hyman1 - OUTLINE Civil Procedure Appeals and Claim...

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OUTLINE: Civil Procedure Appeals and Claim Preclusion I. APPEALS a. Ah, the ethereal realm of litigation b. All federal judges are Art III judges c. Supreme Court has never held there is a const right to appeal a civil case. i. Theoretically, a juris could forbid appeals or make them discretionary ii. To date, every juris grants right of at least one appeal in civil cases d. Generally not granted; much deference to the lower courts. E. DETERRENTS/INCENTIVES i. No Money ii. Money, but… 1. Have it, but don’t want to throw good after bad (cost ranges from $20- 100K) 2. Infrequent for appeals court to rule in your favor 3. Bond requirements? If you appeal, you don’t have to pay damages, but you may have to post a hefty bond (Texaco v Penzoil- huge bond!). So long as across the board and not just about these particular appellees, acceptable. 4. Surcharges. MI statute to charge 15% of an unsuccessful verdict upheld bc applied to all and a signal that a momentous event. iii. Time. 1. Very long wait (1-2-5 years) if not resolved in a year, looks bad iv. A frivolous appeal may result (but very rarely, even less than Rule 11), in damages and single or double costs. (Fed. R. App. P. 38) F. PROCESS i. Judges decide things in panels of 3, or larger panels (en banc); sometimes per curiam opinion by a clerk ii. Process based on written arguments, rarely oral arguments (15 mins) iii. What - appeal something that was previously presented and argued, but the lower court “erroneously” rejected this theory. Very few exceptions, especially if a question of fact. iv. How judges decide: 1. can affirm for any reason in the record, or reason pressed by litigants 2. a statute not in argument can provide for affirm/reverse 3. “harmless error” 28 USC 2111. (although lower court ruled in error, we find is not “reversible error”) 4. ex where reversed: jury got a dictionary re “willful and wanton” v. Who can appeal - 1. someone who suffered an “adverse judgment” below 1
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OUTLINE: Civil Procedure Appeals and Claim Preclusion 2. if you won, you cannot appeal, even if unhappy about what basis it was decided upon vi. Where you can appeal 1. based on geography, the circuits. vii. When can you appeal - 1. Final decisions . a. 28 USC 1291. Can only appeal a final judgment b. Rule 58. Final judgment. i. Single piece of paper that states the ruling ii. Signature of court and filed with clerk iii. Service of process on all the parties c. Rule 54. Judgment i. 54(b)There can be multiple judgments, but cases generally go up on appeal once the whole thing is decided. Not piecemeal bc the parties may change their mind. (lose the battle but win the war) d. Goals: Only final and only the whole judgment (not piecemeal) bc minimizes likelihood of appeal. e.
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This note was uploaded on 03/03/2010 for the course LAW 28465 taught by Professor Carson during the Fall '09 term at University of Texas.

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Civ_Pro_Hyman1 - OUTLINE Civil Procedure Appeals and Claim...

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