LAST LS SESSION BEFORE FINAL REVIEW SESSION: Dec.

7th 12pm - 1pm Rm 202 APPEALS - not a retrial; no witnesses testify in person - judges consider only those issues raised by the appealing party - appeals can be taken when court disposes in full of all the final relief sought by all the parties RULE First Step in whether a person can appeal: is it final judgment? 28 USC Sect. 1291: the court of appeals shall have jurisdiction from all final decisions of the district courts of the US o finality principle: _______________________ o final judgment: _________________________ ie:

5 EXCEPTIONS to the Rule: 1. Judgment on Multiple Claims 54(b)(2): when an action presents more than one claim for relief or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. o that is a party can appeal an issue or claim that is part of a cause of action consisting of multiple claims before the final judgment on all of the issues/claims is rendered, as long there has been a final judgment entered on that particular issue on appeal 2. Injunctions 28 USC Sect. 1292(a)(1): allows an interlocutory appeal of district court orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions o that is a party can appeal an injunction (= the court ordering a party to do something or stop doing something) before final judgment is rendered in the case 3. Certified Interlocutory Appeals 28 U.S.C. Sect. 1292(b)(1): allows district court to enter an order/interlocutory appeal if three requirements are satisfied: 1. Involves a controlling question of law 2. On which there is substantial ground for difference of opinion 3. From which an immediate appeal may materially advance the ultimate termination of the litigation

o if a party meets all 3 requirements, which is rare, then the court will grant the interlocutory appeal = falling betw. the beginning & end of the lawsuit Two prong test for an interlocutory appeal to be heard (1292b): 1. 2. 4. Writ of Mandamus: o very high standard to meet: to grant the writ the trial judge must have exceeded his authority o a party files a petition for a writ of mandamus before the trial proceeds 5. Collateral Order Doctrine: o allows appeals from interlocutory rulings so long as those rulings conclusively decide an issue separate from the merits of the case and would be effectively unreviewable after final judgment o triggered by irreparable circumstance = something the moving party cannot get back (if the party were to wait until final judgment to appeal) o District Court allows an interlocutory appeal and enters an order if it: 1. Conclusively determines the disputed question 2. Resolves an important issue completely separate from the merits of the action 3. Is effectively unreviewable on appeal from a final judgment 4. Important unsettled question of controlling law

STANDARD Who has the right to appeal a trial courts decision? (standing to appeal) o Rule: ______________________ What errors of a trial court are reviewable? (reviewability of error) o Rule: only prejudicial (harmful) errors of the trial court that made a difference (or probably did) to the outcome of the case and were preserved (raised/objected to) by appellant in the trial court You will learn in evidence class that you must make certain objections during trial or motions hearings in order to preserve the right to appeal. Also you will learn in evidence class that the court will not reverse a district courts ruling/jurys verdict if the error was harmless (which often times is the case) o judicial error + reviewable (prejudicial and preserved) When can an appeal be taken? (appellate jurisdiction: appealability) o Fed. Rules of Appellate Procedure Rule 4. File within 30 days of final judgment designating what is being appealed

Interlocutory Appeals o Advantages: Efficiency (but a lot of uncertainty) avoid prejudice- irreparable harm if you wait o Disadvantages: Delay congestion- wasting the courts time; greater costs

STANDARD OF REVIEW How much scrutiny (deference) will an appellate court apply to a trial courts decision? (standard of review on appeal) for findings of fact clearly erroneous standard o mere disagreement is not enough o great deference to lower court- only reverse if obvious error for rulings of law de novo standard o mere difference is sufficient o court doesnt owe any deference to the lower court o evaluate question from a clean slate, new perspective for mixed questions (applications of law to fact) de novo standard (facts trigger the law- and then apply that law to the facts) o mere disagreement is sufficient o clean slate for discretionary decisions (vast majority) abuse of discretion o great deference to the lower court o only reverse if abuse of discretion (high standard to meet) ex: FRCP 11 sanctions; hearsay/admissibility of certain evidence o standard higher than mere disagreement w/ lower court- must show abuse

*** If on appeal you are the appellant arguing for a reversal of the lower courts decision, you would want to argue ________ standard of review. WHY? _______________ ***

CASE In re Recticel Foam Corp.: (1st Cir. 1988) o Rule: 28 USC 1291 o Facts/Procedure: o Holding: o Reasoning: 1. 2. 3.

HYPOs. After an auto accident, Patty sues Dean Corp., the manufacturer of the car, bringing claims of strict product liability, breach of warranty, and negligence. Patty is seeking a total of $1 million in compensatory damages. 1. Dean brings a Rule 12(b)(6) motion to dismiss all three of Pattys claims. The motion is denied in its entirety. Is this a final judgment from which Dean may take an immediate appeal? 2. Suppose instead that the court grants Deans motion in its entirety but grants Patty leave to amend her complaint. Is this a final judgment from which Dean may take an immediate appeal? 3. Same facts as #2. Suppose Patty amends her complaint and Dean brings a second Rule 12(b)(6) motion to dismiss. This time the court grants the motion in part and denies it in part, dismissing Pattys breach of warranty and negligence claims with prejudice but upholding Pattys strict product liability claim as properly pleaded. Is this a final judgment from which Dean may take an immediate appeal? Is it a final judgment from which Patty may take an immediate appeal? 4. During discovery in the case, Patty requests production of certain design documents that Dean claims contain highly sensitive trade secrets. Dean moves for a protective order, which the court denies, thus ordering Dean to turn over the documents. Dean asks the court to reconsider, but the court refuses. The law regarding whether such documents must be disclosed is unsettled. Dean wants to take an immediate interlocutory appeal of the courts ruling. What exception to the final judgment rule could Dean use? 5. Pattys strict product liability claim goes to a jury trial. The jury renders a verdict finding Dean liable for product liability but awarding only $500,000 in damages to Patty. The court then enters a final judgment on this verdict. Who may appeal? 6. Dean takes an appeal of the judgment for Patty on the jury verdict. What standard of review (de novo, clearly erroneous, or abuse of discretion) will the Court of Appeals apply to each of the following issues: a. Whether the district court gave erroneous instructions to the jury on the law of strict product liability?

b. Whether the district court improperly modified its scheduling order to allow more time for Pablo to take depositions of Daimler employees? c. Whether the jury improperly found that the design of the car in question was defective?