April 5, 1999

No class April 16.

Categories for discovery of experts:

Formal consultation - person is discoverable

• interrogatories or depositions
• if paid that leads to formal consultation

Informal consultation - not likely that person is discoverable

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April 7, 1999

Last class April 28

Final exam is on May 4 at 6-9pm

Case review

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April 9, 1999

WED 28 April - 11 - 2pm review session

Review of deposition stuff

Review of discovery stuff

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April 12, 1999

Review of Requests for Admission info

Treviño v. Central Freight Lines, Inc.

BOE of Evanston Township v. Admiral Heating and Ventilating

• continuing access to documents is reasonable as long as there is 10 business days' notice given

what is good cause for rule 35 purposes? Discovering party (the movant) has the burden of showing good cause.

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April 14, 1999

Judgements on the pleadings

Three affirmative defenses

1. Dismissal for failure to state a claim
2. Judgment on the pleadings
3. Summary judgement
4. Judgment as a matter of law during trial ("directed verdict")
5. Judgment as a matter of law after trial ("judgment notwithstanding the verdict")
6. Appellate reversal because evidence doesn't support verdict

• see page 509 for more information

review of Adickes v. S.H. Kress & Co.

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April 19, 1999

Rule from Adickes: there must be an issue of fact for the case to proceed to jury.

Not much going on in here today. Just more back and forth discussion of miscellaneous topics that somehow seem to relate to civil procedure. Some people behind me whisper that the person answering questions does not know how to pronounce the word "affidavit." I don't think very many people are clear on how to pronounce that word. Professor and the obnoxious one are arguing. Everyone else seems to be kind of listening.

Exams are fast approaching. There are only two weeks left of classes and then a few weeks of torture as studying takes over. Motivation seems to be a problem this time around. Maybe because I am feeling more comfortable after experiencing midterms. Whatever the case, I need to get moving on things. Today I looked up the exam schedule for the first time. One test every three days.

P must show there is evidence that supports its case.

Motion for summary judgment tests the factual sufficiency of P's case.

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April 20, 1999

More on 18.4 - bus problem

There was an express warranty in problem, not we have no express warranty

Then you should check to see if there is an implied warranty of merchantability

Need to ask if it was disclaimed - look at sales contract (§2316)

----à Implied warranty of ---à if notice --à effective, but wrongful à list of

| merchan. Disclaimed of rejection rejection (breach) seller's

| remedies

| (§2703)

Assume no

Express warranty à implied warranty not -à not breached

| Disclaimed | /-à limitation of remedy

| \à breached --/ (§2719) and exclusive

| | if rejected then see

| \ rejection above

| \à no remedy limit in K

| or

| limited remedy failed of

| essential purpose (2719)

| |

| --------------------------------

| | \

| give notice of breach revoke acceptance

| damages with respect to |

| goods that have been accepted |

| (§2714) ^ |

| |------- Hold the bus?; Use

| the bus?

| (use of bus is mitigation?)

|

|

\-------à

Problem with §2719(2) is that you don't know how long to keep trying to fix product. That is why lemon laws try to define this better.

If person wants to use the product although they intend to revoke acceptance, then that person should at least give notice to seller of what the plan is.

FOR TEST: make sure we know what a merchant is. §2104

Next class on Monday. Next Tuesday is last class meeting.

XIII - do assignment 22 (22.4 .5 .2)

XIV - 25.1 - 25.4 assignment

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April 21, 1999

More review on Summary Judgment

Motions for SJ will be granted only so long as the moving party affirmatively shows via evidence that there is no remaining triable issue of fact (use affidavits, records, etc to show this) (Adickes case)

Motions for summary judgement should not be made when the only contested fact left for the jury is a question of negligence.

Don't mix up judge decisions and jury decisions

• if a motion is made for a new trial based on insufficiency of evidence, P's best argument on appeals is:
• if court has concluded that the verdict has come in against the great weight of the evidence, he cannot grant a judgement as a matter of law because this would be putting the judge in the position as a finder of fact

Right to trial by jury: 7^th Amendment

• gives rights as long as seeking remedies at law
• how do you tell in which a jury is available and one in which it is not available

• look to nature of issue

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April 23, 1999

Review of judgment matter of law, summary judgment, directed verdict

There WILL be multiple choice questions about this on the exam!!!

Judge grants new trial, what should counsel for D do?

• judge concludes judgment came in on grounds of insufficient evidence
• if so, then it is clear that D was entitled to judgment as matter of law, NOT a new trial - if there was insufficient evidence, then have to have judgment matter of law

Judge grants new trial on grounds that jury came in against great weight of the evidence

• standard for judgment NOV is NOT weight of evidence. If judge were to do this, it would be like Judge was weighing the evidence which he cannot do.
• What judge should do here is grant a new trial not JNOV

A verdict that comes in that is against the great weight of the evidence should be granted a new trial

Directed verdict - before giving it to jury (during trial after other side rests arguments)

Judgment notwithstanding the verdict - after jury comes back with verdict

What is the authority for a declaratory judgment? See title 28 § 2201

Subject matter jurisdiction - 1331

Well pleaded complaint rule - when a complaint invokes federal judicial jurisdiction, the cause of action upon which P sues must arise directly from federal law

Rule against anticipatory pleading - P may not anticipate a federal claim or defense. P cannot allege nature of defense or claim

Does either party have a claim for coercive relief?

1337A -

2. If petitioner would have been entitled to a jury trial in a treble damage suit, he cannot be deprived of that right merely because the prospective defendant took advantage of the availability of declaratory relief to sue petitioner first. P. 504.

In any action of mixed law and equity, the legal issues should be tried first to a jury and then anything left over can be tried to a court of equity

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April 26, 1999

How do we know whether an issue is an issue at equity or issue at law?

Suit for specific performance is ??