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c. Requests for production of documents and other physical items. Stress that when a
proper request is made, a party to litigation may have to produce—from its own files
the other main forms of discovery, this one requires a court order.
7. Although the discovery process normally is conducted without judicial involvement or
if a party does not comply with discovery obligations (e.g., doesn’t answer interrogatories,
8. The Cyberlaw in Action box at p. 42 deals with the relatively new federal rules governing
preservation of potentially discoverable electronic information.
9. Remind your students of something noted earlier: that the discovery process sometimes
makes one’s own files and records the source of evidence that may be very helpful to the
scandals involving corporate misconduct and accounting fraud.
10. Stress that summary judgment involves both law-identifying and fact-resolution functions.
correct legal treatment of the facts is clear?)
11. With regard to the civil trial:
a. Note the purpose and role of the pre-trial conference and any order emerging from it.
b. You may want to go beyond the text by saying a few words about the issues
surrounding the availability of a jury trial. Briefly, a jury trial is available at the
than “in equity.” The complex body of law devoted to this question cannot be
discussed in detail here, although it is accurate to say that a high percentage of cases in
in other situations.
c. You might also want to say more about the process of jury selection-—especially voir
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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
dire, challenges for cause, and peremptory challenges. Challenges for cause are
be challenged for cause.
d. Note the basic division of labor between judge and jury in jury trials.
e. With the above preliminaries out of the way, the stage is set for the text’s summary of
the typical trial scenario. Work through the basics of trial procedure outlined in the
must also be cited.)
f. Note the difference between lay witnesses and expert witnesses. Explain the standard
for whether a party may testify as an expert witness.
g. Following the basic trial scenario, discuss the different procedures followed in trials
role in the American legal system.
h. Continuing the theme of the jury‘s role, discuss the motion for a directed verdict and
(with the directed verdict doing so before the jury decides the case and the judgment
13. When discussing the appeal of civil judgments, re-emphasize that appellate courts are
remand.
15. Explain the nature of class actions, the rationale for allowing them in appropriate
enacted by Congress in an effort to restrict the number of class actions in state courts and
concerns that may arise if courts become less inclined to certify cases as class actions.
16. Wal-Mart Stores, Inc. v. Dukes (p. 47): The Supreme Court holds that class action
Chapter 02 – The Resolution of Private Disputes
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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.
certification should not have been granted with regard to a lawsuit in which a supposed
class of 1.5 million women alleged that Wal-Mart committed sex discrimination in
deciding on promotions and salary increases.
Points for Discussion: Note that this decision almost certainly will be very influential
employees’ claims, even though they all dealt with sex discrimination in some sense. The
claims, therefore, were not sufficiently common in their facts and in the issues they
which to hold that the case could not proceed as a class action. Note, of course, that the
E. With regard to ADR:
1. Emphasize the main reasons for the growing popularity of ADR: the “litigation
mentioned in the text
3. The text indicates that arbitrators sometimes may have freedom to ignore substantive rules
4. Additional example of situations in which “private” mediation may be used: school
housing, and family courts.
5. AT&T Mobility LLC v. Concepcion (p. 51): The U.S. Supreme Court holds that if an
arbitration clause in a contract not only requires that disputes be arbitrated but also bars
Act.
Points for Discussion: Ask students about the basic facts here and about why the plaintiffs
who filed suit would have wanted this case to proceed in court as a class action, as
despite the arbitration provision. (Because California cases had established that arbitration
clauses prohibiting class arbitration were unenforceable on the ground of
that the exception for state law-based grounds doesn’t apply. The effect, of course, is that
Chapter 02 – The Resolution of Private Disputes
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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.
arbitration clauses are enforceable even if they bar class-wide aggregation of claims.
What do your students think about the Court’s reasoning? What do they think will happen
as a result of this decision? (Almost certainly, companies will respond to the decision by
adding prohibitions on classwide aggregation of claims to the arbitration clauses they put
6. For additional examples of arbitration and FAA issues, see Problems #2 and #5.
IV. RECOMMENDED REFERENCES:
A. G. HAZARD & M. TARUFFO, AMERICAN CIVIL PROCEDURE: AN INTRODUCTION.
B. M. KANE, CIVIL PROCEDURE IN A NUTSHELL.
C. J. NOLAN-HALEY, ALTERNATIVE DISPUTE RESOLUTION IN A NUTSHELL.
V. ANSWERS TO PROBLEM CASES:
2. No. The U.S. Supreme Court held that the Federal Arbitration Act (FAA) overrides a state
law would still apply, however, and would be among the rules to be applied by the arbitrator in
3. No. The Illinois Court of Appeals held that the Oklahoma defendants were subject to the in
personam jurisdiction of the Illinois court. The case, which centered around false statements
situation, the statutory and constitutional issues merge into a single due process inquiry in
which the “minimum contacts” issue becomes critical. The court concluded that the requisite
minimum contacts were present). Moreover, the defendants had also targeted Illinois (and the
Illinois plaintiffs) with phone calls and other communications. Finally, the court concluded
2005).
4. The Ruizes were entitled to the requested documents and materials. The Supreme Court of
it was discoverable. The court rejected the “work product” argument made by the
5. The U.S. Court of Appeals for the Eighth Circuit held that the district court did not err in
overruling the defendant’s motion to compel the plaintiff to produce certain requested
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of fact” in understanding the evidence or determining a fact at issue, assuming the witness
qualifies as an expert and reliably applies relevant principles and methods. The court
628 F.3d 1032 (8th Cir. 2011).
6. On the ground that the inadmissible evidence and improper conduct tainted the proceedings,
Tyson can: (1) move for a judgment notwithstanding the verdict (also called a judgment as a
damages greatly exceeded what would be necessary to accomplish the purpose for punitive
damages as set forth in the jury instructions. The judge therefore ruled that both awards of
law by vacating all but $50,000 of the compensatory damages and $100,000 of the punitive
damages. He also granted Tyson’s motion for a remittitur under which Tyson’s motion for a
7. The Supreme Court of Oklahoma ruled that the lower court was wrong, and that the Oklahoma
the defendants possessed sufficient minimum contacts with Oklahoma. Guffey v.
Ostonakulov, 321 P.3d 971 (Okla. Sup. Ct. 2014).
8. The federal district court held that Abbott improperly removed Lewis’s claim from state court
to federal court. Therefore, the federal court remanded the case to state court. Concurrent
the amount in controversy exceeded $75,000. Hence, subject-matter jurisdiction was lacking.
The unanswered request for admission played a key role in the court’s conclusion that Abbott
unusual in the sense that the deemed-admitted request served to help the party regarded as
having made the admission. Usually, it is the other way around (i.e., the request that is
9. No. The U.S. Supreme Court has original and exclusive jurisdiction over all disputes between
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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
two states. New Jersey v. New York, 526 U.S. 589 (1999).
10. The Tenth Circuit concluded that even though the requisite minimum contacts existed between
the Canadian defendant (Cameco) and the state of Colorado, traditional notions of fair play
and substantial justice counseled against allowing the case to proceed in the United States.
375 F.3d 1070 (10th Cir. 2004).