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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:
Chapter 04 - Litigation
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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.
Chapter 04 - Litigation
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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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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
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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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
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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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
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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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
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?
