March 2nd Notes

Litigation Basics
March 2, 2010

NEWS
Job Opportunities
Stephanie Seigle from "Homecoming" called me to let you know there are 3 openings at her firm (Stoel Rives).  Go to:  http://www.stoel.com/staffopenings.aspx

Tomorrow: ESI Lecture
Thursday: Law Dawgs Career Fair (bring resumes)
Tuesday: Review Night
Wednesday: Open Study
Thursday: Final
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Chapter 16

Post trial Motions
Motion for a New Trial
-Rule 59 allows dissatisfied party to file a motion asking for new trial
-The court may grant a new trial on the grounds
1. verdict was contrary to law
2. verdict was totally defective
3. irregularity in the court proceedings
4. excessive or insufficient damage awards
5. jury misconduct
6. newly discovered evidence (show it was not available at trial and will change the outcome)

-must be filed with the court within 10 days of the entry of judgment
-some states allow a longer period of time

Preliminary Steps in the Appeal
-without appeal there are no checks on the legal decision making of the trial courts
-the clerk supervises the preparation of the court record for an appeal, forms to lawyers, and copies of local rules
-expensive, time consuming and usually does not help

appeal
-asking a higher court to review the actions of a lower court in order to correct mistakes or injustice

appellant
-the person who appeals a case to a higher court, not necessarily the losing party

appellee
-the person against whom an appeal is taken

cross-appeal
-an appeal by the appelle

pro-se
-a person representing himself or herself (as defendant or plaintiff) without a lawyer in a court proceeding (whether the matter is civil or criminal)

Preliminary Steps in an Appellate Procedures
1. notice of appeal
2. bond for costs or supersedeas bonds
3. transcript order and preparation of pertinent record sections
4. filing of briefs of both parties

Notice of Appeal
-a document filed with an appellate court and served on the opposing party, giving notice of an intention to appeal
-must be filed with the clerk of the district court from which the appeal is taken within 30 days after the entry of the judgment
-Rule 4 notice of appeal must be filed within 60 days after entry of judgment of the order
-Rule 12 requires the attorney who filed the notice of appeal must within 10 days after filling the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal
-appellate pays 2 docketing fees to the clerk
-clerk of the district court is required to serve notice by mail

Appeal Bond
2 types of bonds
1. supersedas bond
-a bond put up by a person who appeals a judgment
-is a judge's order that temporarily holds up another court's proceedings or temporarily stays a lower court's judgment
-bond delays the person's obligation to pay the judgment until the appeal is lost
-to collect on the judgment now

2. Appeal bond
-covers the cost of the appeal, usually a smaller bond
-if you lose, you pay the costs incurred by the other side

-Rule 7 require appellant to file a bond

Ordering Transcript
-Rule 10(b) within 10 days of filing the notice for appeal the appellant is responsible for making a written request on a form from the clerk for transcripts

-usually is 90 days in reality

-Responsibilities of Appellant and Appellee
--Rule 10(b) if the entire transcript is not included on the appeal, the appellant in 10 days must file a statement of issues that will be presented

-Responsibilities of the Court Reporter
--Rule 11(b) court recorder acknowledge receipt of the order for the transcript, has 30 days after receipt to notify the clerk of appeals of the filing

-Responsibilities of the Paralegal
--maintain close contact with the court reporter to make sure of the timely filing of the transcript

Transmitting the Record
-arranging chronological order of the papers field with the district court and numbering and indexing
-done in 15 days of filing notice of appeal or filing of the transcript
-parties may stipulate that the district clerk retain the record temporarily for the parties use in preparation of the appeal 

Enlargement of Time
motion for enlargement of time
-motion requesting additional time for an appeal including the reasons that the additional time is needed and the number of days needed

The Appellate Brief
-must have a clear issue of law
-there must be a clear statement of facts

Drafting the Appellate Brief
amicus curiae
-a person allowed to give argument in a lawsuit who is not a party of the lawsuit
-particularly the supreme court
    -to inform the court of the issues

-Format of the Brief
-a brief submitted under Rule 28.1(e) includes certificate by an attorney that the brief compiles with the types volume limitation

-Researching the Brief

-Drafting the Statement of Facts

Appellant, Appellee, and Reply Briefs
-Appellant's Brief
-brief of the person bringing the appeal
1. disclosure statement
2. table of contents
3. table of cases in alphabetical order
4. statement regarding oral argument
5. statement of jurisdiction
6. statement of issues
7. statement on case
8. statement of facts on legal issues

-file an appendix
1. docket entries
2. pleadings, charge, findings or opinions
3. judgment, order, decision
4. any other records

-10 copies of the appendix must be filed with the clerk
-Rule 30(d) arrangement of the appendix
1. table of contents
2. relevant dockets
3. record in chronological order

-4 copies of exhibits volume filed and served

-Appellee's Brief
-brief of the person who opposes an appeal
-all the same requirements  as the other brief
-does not require
1. jurisdictional statement
2. statement of issues
3. statement of facts
4. statement of case
5. statement of the standard of review

-Reply Brief
Rule 28(c) the appellee may also file a cross-appeal
-files a cross-appeal the appellant will file a brief in response to the issues presented in the cross appeal

Filing and Service of Appellate Briefs
-Rule 31 the appellant must file and serve its brief in 40 days after the date on which the record is filed
-appellee has 30 days after service to file and serve its brief
-Rule 31(a) reply is due 14 days after service after service of the appelle's brief
-needs 25 copies of each brief (could be 6 with 2 original, 2 cross, 2 replies)

Coordinating the Oral Argument
oral argument
-the presentation of each side of a case before an appeals court, the presentation typically involves oral statements by a lawyer interrupted  by questions from the judge

excludes oral argument if
1. appeal is frivolous
2. dispositive issues have been decided
3. briefs and records present facts and legal arguments

Preparing for the Oral Argument
-Outline of the Argument
-Research Notebook for Justices
-usually just cases for the justices to read
-good for out of state cases
-Delivery of the Exhibits to Court
-the ones that are evidence and submitted

Assisting at Oral Argument

Final Procedures
Further Appeal Procedures
petition for rehearing
-request that a higher court decision be reviewed
-14 days
-Rule 32 unless the court permits local rules

petition for certiorari
-request for a rehearing before the US Supreme Court

Posstrial Judgment Procedures
judgment creditor
-party seeking to execute on the judgment
-statutory remedies allow for executions of a judgment within 30 days after the entry of judgment
judgment debtor
-party who must pay the judgment

Getting the other side to pay out
1. Levy the assets
-do an assets check
-hire an PI to find assets
-attaching assets

2. Postjudgment interrogatories
-are written questions that the judgment debtor must answer in writing about his assets

If they refuse to answer interrogatories you can:
post judgment deposition (debtor exam)
-sending the opposition a notice of intent to take oral deposition by nonstenographic means
-bring them into court and under oath get answers about their assets
-can ask them about anything
-Rule 69(b)
-can start taking after 10 days

writ of execution
-court order compelling the seizure of the judgment debtor's property to satisfy the judgment

-personal property is seized and sold before real property is subject to seizure
-after the auction is held and the debt satisfied any remaining goes to the debtor
2 reasons why
1. Easier to transfer the personal property
2. trying not to inconvenience the debtor, want to find an alternative rather than take the house

If you do not seize property you can garnish:
post trial garnishment
-separate but ancillary lawsuit filed in the court that rendered the judgment
-means seizing any assets of the debtor held in the hands of a third party
    -can be applied to your salary not limited to though
    -can seize up to 25% of the gross salary
-the garnishee is the third party who has the money they give to the debtor
    -so garnishment is against them, the ones holding the assets

garnishment
-brought against a third party garnishee that is holding assets belonging to the judgment debtor

Chapter 16 Review Questions
1. What is a motion for judgment as a matter of law?
2. What is a motion for a new trial?
3. What is an appeal?
4. Who are the parties to an appeal?
5. What is a supersedas bond? What is its purpose?
6. List and define 4 types of appellate briefs.
7. What duties does the paralegal have in relation to oral arguments?
8. What postjudgment discovery devices are available to a judgment creditor?
9. What is a petition for certiorari?
10. What posttrial judgment procedures are available to collect a judgment?