978-0078023859 Chapter 4 Solution Manual Part 2

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Chapter 04 – Litigation

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“A product is defective if the use of the product in a manner that is reasonably

foreseeable by the defendant involves a substantial danger that would not be readily

recognized by the ordinary user of the product and the manufacturer fails to give

adequate warning of such danger.”

reasonable care should have been known, which may follow the foreseeable use of the

product.”

C. Burden of Proof

Emphasize:

 The difference between the burden of persuasion and the burden of coming forward with

involving O.J. Simpson many years ago to illustrate this point.

Criminal Cases

Emphasize:

 The three burdens of proof, and compare them by using the scales of justice and the

extent to which they must “tip” in favor of the party with the burden of proof.

Civil Cases

Emphasize:

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 That in civil cases, the party with the burden of proof is subject to one of two

standards: the preponderance of evidence standard or the clear and convincing proof

standard.

D. Deciding the Case

Emphasize:

 The distinction between a verdict and a judgment.

 The importance of a judgment notwithstanding the verdict and when it may be granted.

 The importance of posttrial motions.

Additional Matters for Discussion:

 Illustrate a posttrial motion by using an actual one if possible. Most motions include

everything but the kitchen sink as the losing party seeks to avoid the loss.

 Call attention to the marginalia that judges do not like to admit making mistakes during

the trial.

IV. Posttrial Issues (LO 4-5)

A. Appeals

Emphasize:

 The fact that the appellate court reviews what transpired in the trial court to ensure its

correctness but does not hold a trial hearing new evidence, nor does it make its own

determination of facts.

 That there is great deference to the trial court, particularly on findings of fact.

 Sidebar 4.16 on Qualcomm and posttrial sanctions. Point out how the breakdowns in

communication led to the diminished reputations of the attorneys involved.

Appellate Procedures

Emphasize:

 That appeals can be extremely expensive in both time and money—so much that it

often is not economically feasible for the loser of a lawsuit to prosecute one, even if

he is convinced that he would win the case on appeal.

 That losing parties have the right to appeal to a higher court.

 Table 4.1 on the litigating parties and the different names used for parties depending

upon the level of appeal.

 Figure 4.4 on the various steps in appellate review.

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of the proceedings by reviewing courts.

 Sidebar 4.17 on appealing an evidentiary ruling.

Deference to Trial Courts

Emphasize:

 That great deference is given to the trial court in reviewing appeals.

Cases for Discussion:

1. Anderson v. City of Bessemer City, N.C., 105 S.Ct. 1504 (1985).

Bessemer City decided to hire a new recreation director. A committee of four men and

one woman was responsible for choosing the director. Eight persons applied for the

position. Anderson was the only woman applicant. She was a thirty-nine-year-old

2. Icicle Seafoods, Inc. v. Worthington, 106 S.Ct. 1527 (1986).

X was employed as an engineer on Board A Barge. He sued to recover overtime benefits

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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

Appeals found that X’s “dominant employment” was “industrial maintenance” and that

the “maritime work” that he performed took only a small portion of his time, and

therefore concluded that X was not a seaman.

Issue: Should the appellate court conduct this de novo review?

Held: No. The Court of Appeals erred in engaging in such fact-finding. The facts

necessary to a proper determination of the legal question, whether an exemption to the

FLSA applies in a particular case, should be reviewed by the courts of appeals pursuant to

the “clearly erroneous” standard of review set forth in Federal Rule of Civil Procedure

52(a), like the facts in other civil bench-tried litigation in federal courts.

B. Enforcement of Judgments and Decrees

Emphasize:

 That obtaining a judgment or decree is far different from having the judgment satisfied

particular case.

 That Res judicata means either that the case has been finally decided on appeal or that

the time for appeal has expired and a cause of action finally determined by a competent

court cannot be litigated by the parties in a new proceeding by the same court or in any

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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

 That Res judicata prevents successive suits involving the same factual setting between

the same parties and brings disputes to a conclusion. A matter once litigated and legally

determined is conclusive between the parties in all subsequent proceedings.

Case for Discussion:

1. Cummings v. Dresher, 218 N.E.2d 688 (N.Y. 1966).

There was a collision between an automobile owned by Mr. Cummings but driven by

Mrs. Cummings and one driven by Bernard Dresher. Henry Dresher, the brother of the

driver, was a passenger in the Dresher car. Both Bernard and Henry sued Mr. and Mrs.

Cummings in the federal court for damages for their injuries. The jury in that case found

Mrs. Cummings was negligent and also found Bernard Dresher was negligent. Based

upon the doctrine of contributory negligence, Bernard was not allowed to collect

damages. However, Henry was awarded damages since he was not the negligent driver.

Subsequently Mr. Cummings filed suit against Bernard Dresher for damages to the car

sustained in the collision. This suit was brought in a state court, and Bernard Dresher

sought a summary judgment on the ground of res judicata.

Issue: Is a federal court decision res judicata for a later state court action involving the

same parties and the same events?

Held: Yes. When a full opportunity has been provided to a party in a prior action to

prove his or her freedom from liability or to establish liability on the part of another,

there is no reason for permitting him or her to retry those issues. In the first case, both

drivers were found to be at fault. One who has had his or her day in court cannot

relitigate the issues. The judgment in the first trial is conclusive.

Answers to Review Questions and Problems

Litigation—An Overview

1. Parties

Yes. It is appropriate for the original defendant, the contractor, to bring the supplier into the

lawsuit as a third-party defendant. This process of impleading an additional party allows for

an efficient determination of rights and duties among all affected parties.

2. Standing to Sue

a. The environmentalists must be able to demonstrate how their personal interests are

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adversely impacted by the actions of the Interior Secretary and the National Park

Service.

b. The issue of a plaintiff’s standing to sue should be raised by the defendant and

addressed by the judge at the outset of the litigation process.

3. Personal Jurisdiction

Attending a business meeting may not be sufficient contact to create personal jurisdiction for

4. Class–Action Suits

Federal cases require that members of the class be given notice of the lawsuit. Plaintiffs

bringing the class-action suit must pay all court costs of action. The court looks for similarity

of claims, complexity of the case, and efficiency of litigation in evaluating whether to permit

the class action lawsuit.

Pretrial Procedures

5. Pleadings

6. Steps in Discovery

7. Scope of Discovery

Abusive discovery practices increase costs and delay resolution of the case.

8. Motions

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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

9. Frivolous Cases

Rule 11 sanctions may be imposed when either a party or a lawyer has filed documents

intending to harass another or to cause unnecessary delays in the litigation process or to

increase the costs of litigation.

The Trial

10. Jury Selection

Elimination of peremptory challenges would make the jury selection process much simpler

11. Other Steps during a Trial

12. Burden of Proof

“Beyond a reasonable doubt” is the burden that the government must satisfy in criminal

cases.

13. Deciding the Case

A motion for a judgment notwithstanding the verdict is granted only when the trial judge

concludes that the jury acted unreasonably in reaching its verdict. Because judges hesitate to

rule that a jury acted unreasonably, these motions are seldom granted.

Posttrial Issues

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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

14. Appeals

An appellate brief is a written statement supporting a legal position. Oral argument before an

15. Enforcement of Judgments and Decrees

16. Res Judicata

The doctrine of res judicata prevents the same civil case from being retried thereby avoiding

needless duplication of judicial resources.

Business Discussion #1

1. How does discovery work?

The discovery process is the bedrock of civil litigation. Through the process of discovery the

2. Can you be required to testify twice in a deposition and at trial?

3. Should you shred all documents you have about the case? You know that some of the

documents will not put the firm in the best light.

Business Discussion #2

1. Should you have settled the case at the beginning?

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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

weigh the costs, time, and publicity that occur regarding litigation. Probably in this case,

settling early would have been appropriate.

2. Has your attorney been getting rich at your expense?

Perhaps, but this is the nature of litigation. The attorney is doing the job that he or she has

3. Is discovery more of a burden than a help?