Civ Pro Flow Charts

Sequence of Trial

Defendant may move for Directed Verdict (Judgment

Opening Statements

as a Matter of Law)

Plaintiff presents evidence

Either party may move for a Directed Verdict (Judgment as a Matter of Law)

Defendant presents evidence

Judge Instructs

Jury renders a verdict

Jury

Closing Statements

Jury Deliberates

Judge enters a judgment on verdict

Enters verdict rendered by Jury

Enters Judgment as a Matter of Law (j.n.o.v)

Motion must be filed by party within 10 days of Judge’s verdict

Party may only move for j.n.o.v. if they moved for a D.V. at the close of all evidence before the verdict

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Pre-Answer Motions Ability to Raise a Waivable Waivable Defense Is a Waivable defense eligible to be raised? Is the defense claiming any of the WAIVABLE defenses?

1. 2. 3. 4.

Personal Jurisdiction Improper Venue Ineffective Process Ineffective Service Process

YES: Proceed to next

No: These defenses can be raised

question

at any time throughout the trial. Note: Lack of SUBJECT MATTER

JURISDICTION can be raised at any time during TRIAL or APPEAL Timing of Waivable Defenses:

If a party wants to raise any Waivable defenses has any other: 1.

DEFENSE

2.

OBJECTION

3.

RESPONSIVE PLEADING

been submitted to the court already?

YES:

NO: No other movements

have been made yet. The rest of Waivable defenses have been waived

A Waivable defense may be

and may no longer be

raised. If more than one WD

asserted. (They must be

is to be raised, they must

asserted INITIALLY and

ALL be raised AT THE SAME

SIMULTANEOUSLY)

TIME as each other or they

will be waived.















Validity of the Defense (Failure to State a Claim) Should a 12(b)(6) motion for Failure to State a Claim be granted? Does the motion challenge the factual allegations of the complaint?

YES:

No:

Motion is not proper for a

Proceed to next

12(b)(6) because it questions

question.

facts and not only whether there is a valid legal claim. 12(b)(6) SHOULD NOT BE

Legal Challenges:

GRANTED.

Does the motion: 1. Challenge legal sufficiency of complaint? 2. Set aside conclusory and legal allegations? allegations? 3. Ask whether the factual allegations (assumed to be true) show PLAUSIBLE (i.e. NON-SPECULATIVE) entitlement to relief under substantive law?

It could potentially be converted to SJ motion if supplemented with affidavits or other factual

YES:

NO:

If the complaint meets all three requirements, requirements, it PROPERLY S TATES A

If the complaint does not meet all

LEGAL CLAIM.

three requirements, it DOES NOT STATE A PROPER LEGAL CLAIM.

MAY NOT BE DISMISSED UNDER 12(b)(6)

Should be dismissed under 12(b)(6) or granted leave by the court to amend the complaint.















Summary Judgment Should the court enter Summary Judgment against a party? Movant’s Party Status:

Does the party that is moving for SJ bear the burden of proof on on the claim at t rial?

YES:

NO:

Usually going to be the plaintiff.

Usually going to be the defendant.

If so, the movant must present the court with SUFFICIENT FACTUAL

If not, the movant only has the burden of showing the court that NO GENUINE ISSUE OF MATERIAL FACT EXISTS.

EVIDENCE to support its claim.

THIS WOULD BE RARE (P DOESN’T USUALLY MOVE FOR SJ) Proceed to next question.

This may be done through: 1. Affidavits, 2. Other FACTUAL evidence, or 3. Simply showing that the existing evidence fails to support the non-movant’s claim for relief Once this is done, the NON-MOVANT has the burden of persuasion; Proceed to next question.

Admissible Evidence:

Has the party that is carrying the burden of proof supported its claim with FACTUAL INFORMATION that can be reduced to admissible evidence at trial? Note: The information NEED NOT be in admissible form at the SJ stage – it just needs to be INFORMATION that

can be reduced to admissible evidence once at trial.

YES:

NO:

Proceed to next question.

If the party bearing the burden of proof has not supported its claim with FACTUAL INFORMATION, the party has failed to meet its burden. Therefore: SJ SHOULD BE GRANTED















Persuasive Evidence :

Does the FACTUAL INFORMATION presented by the party bearing the burden of proof leave some elements of the claim subject to SPECULATION in the face of more likely lawful explanations of the defendant’s challenged conduct? Matsushita v. Zenith

YES: NO:

If there are elements of the claim that If the Party who bears the burden’s evidence supports

are subject to SPECULATION – especially in the face of alternate lawful explanations for D’s conduct – a

EACH element of its claim and leaves nothing to SPECULATION then – SJ SHOULD BE DENIED, provided

court MAY determine determine that the

that the claim is established to the applicable

evidence is INSUFFICIENT to grant SJ.

STANDARD OF PROOF. Proceed to next question.

Standard of Proof :

Does the Party who bears the burden of proof at trial’s evidence prove its case to the degree required under the relevant EVIDENCIARY STANDARD that would be applicable at trial? Anderson v. Liberty Lobby, Inc.

YES:

NO:

If yes, SJ should NOT be entered

If no, then SJ should be entered against the party.

against the non-moving party and the case should go to trial.















Judgment as a Matter of Law Should the court enter Judgment as a Matter of Law? Timing:

May JMOL be entered at this time? Close of Non-movant’ Non-movant’ss Case:

Has the non-moving party completed its presentation of the evidence?

NO:

YES:

If so, proceed to next

If not, then a JMOL would be

question.

INAPPROPRIATE at this time.

Submitted to Jury?

Has the case been submitted to the jury yet?

YES:

NO:

If so, JMOL may NOT be entered unless the following three

If not, then JMOL MAY be entered at this time if

requirements are met:

appropriate.

1.

The jury has rendered a verdict,

2.

A prior motion for DV was made before the case

Proceed to next question to d etermine if it would be appropriate.

was submitted to the jury, and 3.

Within 28 days of the entry of judgment, the motion for DV was renewed as a motion for JNOV a.

On the same grounds, and

b.

By the same party that made the motion previously

Evidentiary Support: Is the non-movant’s non-movant’s case supported by sufficient evidence that a REASONABLE JURY could find in favor of that party?

Has the non-movant FAILED to present evidence establishing an ESSENTIAL element of their claim? YES:

If so, JMOL against the non-moving party is appropriate.

NO:

If not, proceed to next question to see if evidence presented is sufficient.

Do the FACTS and PERMISSIBLE INFERENCES point overwhelmingly in favor of the moving party, such that reasonable people could not arrive at a contrary verdict? The evidence must be viewed in the light most favorable to the party opposing the motion and

















New Trial Should a New Trial be ordered? Time Limit:

Have 28 days passed since judgment was entered on the case?

YES:

NO:

If so, no new trial may be ordered.

If not, proceed to next question. GROUNDS Legal Errors:

Has a reversible legal error occu rred? NO:

YES:

If not, proceed to next question.

If so, the court MAY order a new trial.

Erroneous Jury Verdict :

Does the jury verdict go against the GREAT WEIGHT of the evidence?

YES:

NO:

If so the court MAY order order a new trial. trial.

If not, proceed to the next question.

Excessive Jury Verdict: Is the verdict grossly excessive such that is “Shocks the Conscience”?

YES: NO:

If so, the court MAY use remittitur to to lower the awarded amount. Forces the plaintiff to accept lower $ or face a new trial.

If not, proceed to next question.















New Evidence:

Has new evidenced been d iscovered?

YES:

NO:

If so, could the evidence have been

If no new evidence, proceed to next question.

discovered earlier through the exercise of due diligence?

YES:

NO:

The court should disregard

If not, is the evidence MATERIAL?

the evidence and NOT order

This means is it likely to have an impact on the verdict?

a new trial.

YES:

NO:

If so, the court MAY order a

If not, the court should

new trial in light of new

disregard the evidence and not

evidence.

order a new trial.

Improper Jury Influence :

Have any jurors been improperly influenced in such a way as to undermine our faith in the verdict as the product of impartial decision-making that was based only on the evidence presented at trial.

YES:

NO:

If so, the court MAY order a new trial.

If not, the court should not order a new trial.















Pleadings Adequacy of the Complaint Is the Complaint sufficient under FRCP? JURISDICTION: Does the complaint adequately allege grounds for the court having subject matter jurisdiction.

Must have at least one of the following types of jurisdiction.

Diversity Jurisdiction :

(If this is alleged), does the complaint reveal the COMPLETE DIVERSITY of citizenship of the adverse parties in the case AND satisfaction of the required amount in controversy? If so, the jurisdictional requirement is met.

Federal Question Jurisdiction:

(If diversity of citizenship is not alleged), does the complaint allege some federal law or constitutional provision or treaty out which the claim arises? If so, the jurisdictional requirement is met .

Supplemental Jurisdiction :

(If neither diversity nor federal question is alleged), does the complaint allege the existence of original jurisdiction over other claims in the case and supplemental jurisdiction with respect to this claim. If so, the jurisdictional requirement is met.

YES:

NO:

If the complaint meets one or more

If the complaint does not meet any of the

of the jurisdictional requirements.

jurisdictional requirements, requirements, it will be inadequate for lack of jurisdiction .


adequately state a claim showing that the pleader is entitled to relief ? Statement of the Claim : Does the complaint adequately















Ordinary Claims:

Does the complaint state a claim showing PLAUSIBLE entitlement entitlement to relief? Twombly Does the complaint - after disregarding CONCLUSORY LEGAL ALLEGATIONS – contain facts substantiating allegations of liability? Iqbal Note: Old pleading standard, see Conley , is no longer valid. Only had to contain a claim that would be valid if true. Much more liberal standard and didn’t require the complaint to be plausible. YES:

NO:

If so, then the pleading standard

If not, then the FRCP 8(a) pleading

under FRCP 8(a) has been satisfied.

standard has not been satisfied.


adequately demand judgment for the relief that the pleader seeks? Damages: Does the complaint adequately General Damages – Damages – Are the damages being sought for injuries that were pleaded in the complaint?

YES:

NO:

If so, the complaint supports the damage award.

If not, proceed to next question to determine whether the damages should be considered special damages.

Special Damages: What constitutes Special Damages? Natural & Foreseeable: Are the damages the natural, foreseeable, or inevitable result of

the injuries or events mentioned in t he complaint?

YES:

NO:

If the damages meet the criteria for natural and

If the damages are not natural and foreseeable but

foreseeable, they ARE NOT SPECIAL DAMAGES and the

rather are UNPREDICTABLE, they may be considered















Adequacy of the Answer Is the Defendant’s answer sufficient under FCRP?

Waiver of Service : Has the defendant waived service pursuant to a request under FRCP 4(d)?

YES:

NO: TIMELINESS

If so, the defendant has 60 days to

If not proceed to next question.

respond (90 days for foreign Ds)

Service of Summons:

If the defendant WAS served with process, the defendant has 21 days to respond unless granted an extension by the court or through consent of adverse party.

ADMISSIONS Express Admissions : Does the answer explicitly “admit” an allegation or set of allegations?

YES:

NO:

If so, those allegations are considered “admitted” and he

If not, proceed to next

defendant cannot introduce evidence seeking to disprove those allegations unless an amendment is permitted.

question.

Implicit Admission :

Are the allegations to which the defendant does NOT respond? Could come in the form of: 1.

Defendant ignoring the allegations

2.

Defendant offering a response such as

“I neither confirm nor deny that allegation”

















Denials: Denials: Are the defendant’s denials sufficient to deny the allegation made in the complaint? If not, the defendant CANNOT introduce evidence seeking to disprove the ineffectively denied allegation unless an amendment is permitted . General Denial: Did the defendant set forth a general denial?

YES:

NO:

If so, is there any portion of the allegations that were generally

If no general denial is involved,

denied that are MANIFESTLY TRUE or that the denying party knew was true WHEN THEY DENIED IT?

proceed to next question.

YES:

NO:

If so, the general denial will deemed

If not, the general denial is effective

to have been ineffective and the

to deny all of the allegations to

allegations will be deemed

which it pertains.

admitted. The defendant cannot introduce evidence to disprove the

ineffectively denied allegation unless an amendment is permitted.

Lack of Information :

If the answer pleads a lack of information to form a belief as t o the truth or falsity of an allegation, is the matter presumptively within the defendant’s knowledge?















Substantive Law:

Does the applicable substantive law define the defense as an affirmative defense? defense?

NO:

YES:

If not, proceed to the

If so, it must be set forth affirmatively

next question.

in the responsive pleading.

Definitional Approach :

Does the defendant seek to: 1.

Deny the truth of the plaintiffs cause of action, or

2.

Provide a legal excuse or justification that absolves D of guilt

Deny the truth of:

Provide a legal excuse or justification justification :

This would be an ordinary defense. See below

This would be an affirmative defense. It must be

for definition.

set forth affirmatively in the responsive pleading.

Ordinary Defense:















Amendments Is the proposed amendment proper under FRCP? Amendment as a Matter of Course – Course – Is the amendment one the party is entitled to make as a “matter of court? FRCP 15(a) course” without leave of the court? FRCP Response Permitted – Permitted – If a responsive pleading (i.e. an answer to a claim or answer to a counterclaim) is

permitted, then the question is – “Has the permitted responsive pleading been filed yet?”

YES:

NO:

If a response to the answer HAS been

If the responsive pleading has NOT yet

filed, then HAVE 21 DAYS PASSED SINCE THE PLEADING WAS SERVED?

been filed, the party may amend the pleading ONCE without leave of the court.

YES:

NO:

Subsequent amendments will require

If so, then it is too late for the party to

If not, then the party may amend the pleading without

opposing party’s written consent.

amend the pleading

the court’s consent, PROVIDED

without leave of the

THAT THE PARTY HAS NOT

court or consent of

AMENDED THE CLAIM

the adverse party.

WITHOUT LEAVE ALREADY.

the court’s permission OR the

Response Not Permitted – Permitted – If the pleading to be amended is one to which a responsive pleading is not















Leave of Court: Should the court permit the amendment?

Will the interests of justice be furthered by permitting the amendment? Must ask the following two questions: 1.

Unfair Prejudice – Prejudice – Will the adverse party be unfairly prejudiced by permitting the amendment?

2.

Bad Faith – Faith – Is the failure to present the information contained in the amendment earlier due to

INSUFFICIENT DILIGENCE, BAD FAITH, or INTENTIONAL DELAY?

YES:

NO:

If so, justice MAY not be served by the court

If not, the court should grant the

permitting the amendment.

amendment.

The court can still permit the amendment at

Conforms to our liberal pleading

its discretion. B/PL

standards.

Amendment to Conform to Evidence: If the amendment seeks to conform a pleading to evidence presented OR sought to be be presented at trial , should such an amendment be permitted? FRCP FRCP 15(b) Consent: Have the parties EXPRESSLY or IMPLIEDLY consented to trying the issues NOT raised in the

pleadings that ARE raised in the amendment?

Express Consent:















Leave of Court to Conform Amendment to Evidence: Should the court grant an amendment to conform a pleading to to evidence in the face of an objection? objection? The The question is: “Would the objecting party be unfairly prejudiced by permitting the amendment?”

YES:

NO:

If the objecting party would be UNFAIRLY

If the objecting party would not be unfairly

SURPRISED and PREJUDICED in its ability to

prejudiced by permitting the amendment, the

prosecute its claim OR mount a defense,

court should permit the amendment.

the amendment should not be permitted.

Relation Back of Amendments: If an amendment is proper and has been allowed, does it relate back to the time of the filing of the original pleading? FRCP pleading? FRCP 15(c)(1)(A) Statute of Limitations Law – Law – Does the law providing the s tatute of limitations permit relation back under the

circumstances?

YES:

NO:

If so, the amendment will relate back.

If not, proceed to next question to determine whether Relation Back is p ermitted under another provision of Rule 15.

















Rule 11 Are sanctions under Rule 11 appropriate appropriate in this case? Violation of Rule 11 – 11 – Has there been a violation of Rule 11? Pre-Filing Inquiry – Inquiry – Did the attorney or self-represented party signing the paper conduct a REASONABLE inquiry

into the FACTUAL and LEGAL matter presented in the filing before submitting it to the court? FRCP 11(b)

YES:

If so, proceed to next question.

NO:

If not, a violation of Rule 11 has occurred. Address questions below to see if other violations occurred, and then see below to determine APPLICABLE SANCTIONS.















Discovery Discoverability Is the Material Discoverable Under the FRCP?

Relevance:

Is the material RELEVANT to a claim or defense of ANY party in the action? Note that scope of discovery has changed since 2000 and doesn’t allow “fishing for evidence” without a court order.

YES:

NO:

If so, it IS discoverable unless the court decides to

If not, it is beyond the permissible scope of















Attorney-Client Privilege Assuming the the materials are discoverable discoverable and there are no limitations limitations or Attorney-Client Privilege – Privilege – Assuming protective orders imposed imposed on discovery of the the material in question, question, is the material privileged privileged from disclosure. Communication – Communication – Does the material pertain to a communication?

YES:

NO:

If so, proceed to the next question.

If not, the information is not protected by the A-C privilege and will be discoverable unless workproduct applies.















Waiver: If the answer to each of the above questions is YES, was the privilege waived by

DISCLOSURE OF COMMUNICATION to third parties outside of the privileged relationship? YES: NO:

If so, the privilege has been waived and may not be asserted to prevent disclosure of the material. However, proceed to Part C to determine whether

If not, the privilege applies to the material and it is not discoverable and

work-product protection applies.

NEED NOT BE DISCLOSED.

Work-Product Protection Work-Product Protection – Protection – Is the material protected from discovery by the work-product doctrine. Legal Thoughts – Thoughts – Does the material contain the mental impressions, conclusions, opinions, or legal

of an attorney or o ther representative of the party concerning the litigation?















Other Means – Means – Can the party requesting the material demonstrate that it is unable, without undue

hardship, to obtain the SUBSTANTIAL EQUIVALENT of the materials by some other means?

YES:

NO:

If so, the court may order that the work

If not, the party will not be able to overcome the objection that the material is protected work product.

product be disclosed to the requesting party.

















Joinder Permissibility of the Claim Is the Joinder of the Claim Permitted under the FRCP?















Rule 14 Party – Party – If the claim is against an EXISTING THIRD-PARTY DEFENDANT, what is the party status of the

claimant?















Permissive Party Joinder Is the joinder of the party permissible?

Joinder of Defendants :















Joinder by Non-parties: Non-parties: If the party seeking joinder is a nonparty, does it h ave a right to intervene

under Rule 24(a)(2)? Interest in Action – Action – Does the nonparty have an interest in the subject action?















Compulsory Party Joinder Must a nonparty be joined in an action?













































































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