#11020 - Trial - Civil Procedure

Jury selection: Juries must be selected at random from “a fair cross section of the community in the district or division wherein the court convenes.” Juries cannot be excluded on the basis of “race, color, religion, sex, national origin, or economic status”

1. Challenges for cause: the lawyers explain their basis for thinking the juror unsuitable for this case

2. Preemptory challenges: lawyers need no supply a reason. However, it cannot be based on race or gender.

   1. To show that preemptory challenges are based on race or gender, a party must make an initial showing that allows a court to infer a pattern based on race or gender; that showing then requires the party exercising the peremptory challenge to offer a satisfactory reason, one not based on gender or race.

3. Arguments for peremptory challenges:

   1. Peremptory challenge is a chance for both parties to engage in jury selection, allowing both the defendant and the prosecution to get rid of potentially biased jurors. If both parties have contributed in the configuration of the jury, they will find its verdict more acceptable.

   2. Privacy issues: sometimes jurors have private issues that render them biased. Peremptory challenge can allow the lawyers to strike a juror without letting the judge know the reason, thus protecting the juror’s privacy. For example, if a juror has HIV and the case is about HIV discrimination. The juror may be sympathetic towards the P who was fired because of he is HIV positive. D’s lawyer found out that the juror has HIV, and can use peremptory challenge to strike the juror, instead of challenge for cause, so that the judge will not know the juror’s private health conditions.

   3. Peremptory challenges give lawyers a second change to strike jurors who may be offended by the lawyer’s initial attempt to strike for cause: if a judge strike a juror for cause and the strike was denied by the judge, the juror may be offended by the lawyer and become biased against the lawyer. In this case, the lawyer can use peremptory challenge to strike this juror.

4. Arguments against peremptory challenges:

   1. Citizens have a right to jury, courts should not allow denial of this right with no good reason

   2. Peremptory challenges are sometimes based upon stereotypes. The whole notion that lawyers may apply their own stereotypes to excuse perfectly impartial jurors, as long as those stereotypes do not touch on race, gender and ethnicity, infects the jury system with a profoundly trivializing gamesmanship.

   3. Peremptory challenges are redundant because we already have challenges for cause.

   4. They will make the jury selection process longer and less efficient.

   5. The inquiry itself drives biased lawyers to fabricate non-discriminatory pretexts. It is often difficult, even for the challenging lawyers themselves, let alone trial judges, to know whether some deeply lurking impermissible animus plays a role in striking jurors. Also, proving beyond doubt that a juror was struck purely for racial reasons is extremely difficult, so many lawyers who have done so may get away with it.

5. A jury lied in voir dire: To obtain a new trial, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.

Right to jury trial: 7th amendment: in suits at common law, the right of trial by jury shall be preserved. See p. 671 exercise 1.

1. If the remedy is monetary: the right of jury trial is preserved

2. If the remedy is ejectment (to recover land unlawfully occupied) or replevin (to recover for unlawful takings of personal property).

3. For other remedies the right of jury trial is not preserved

4. For new claims, courts should look at the remedy sought in the case, and make analogy to existing claims.

5. Mixed claims: If a case blends equitable and legal claims, and there are overlapping factual issues, the judge should defer to the jury.

6. Congress:

   1. Can expand the right of jury trial, but cannot limit it.

   2. Congress can create new claims and move it to administrative agency.

   3. Congress can’t limit jury access only when the trial is in courts.

Should we have a jury system?

1. Yes: most people are serious about rendering a verdict; research shows that for most of the time jurors understand the law correctly and renders the right verdict; jury serves as a check on the judge; jury trial is a way to deliver people’s message (e.g. slavery; prohibition period); the alternatives to the jury trial, a judge, have bias as well, and there are also incompetent judges

2. No: costs associated with having a jury trial is high; jurors are sometimes incompetent; jurors sometimes have prejudice; jury is not accountable for wrong verdicts; jurors may not be representative: people with means (e.g. having a lawyer friend) know how to get out of a jury selection; jury trials result in inconsistent application of the law

28 USC 144 (recusal by motion of a party): Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

28 USC 455 (a): Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

28 USC 455 (b) He shall also disqualify himself in the following circumstances:

1. (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

2. (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

3. (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

4. (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

5. (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

   1. Is a party to the proceeding, or an officer, director, or trustee of a party;

   2. Is acting as a lawyer in the proceeding;

   3. Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

   4. Is to the judge's knowledge likely to be a material witness in the proceeding.

28 USC 455(e): No waiver for 455(b), waiver may be accepted for 455(a) provided it is preceded by a full disclosure on the record of the basis for disqualification

Policy:

1. This is not efficient and can be costly

2. This is supposed to be more fair, as judges with prejudice are recused. However, judges may be reluctant to rule against each other.

DV: Directed verdict should be granted if there is no legally sufficient evidentiary basis such that no reasonable jury could find for the party opposing the motion.

1. Without weighing the credibility of the witnesses, if there is a meaningful dispute about whether the facts are true, the case should go to the jury.

2. Statistical evidence is not enough for granting a directed verdict

   1. Except for hazardous activities, where for policy reasons, statistical evidence is enough for granting a directed verdict

3. Timing DV can be made by a party, after the opposing party was fully heard, at any time before the case is submitted to the jury

JNOV: JNOV should be granted if there is no legally sufficient evidentiary basis such that no reasonable jury could find for the party opposing the motion.

1. Advantage of granting JNOV is that in case the ruling is reversed on appeal, there is no need for a new trial because a jury verdict was rendered.

2. It can be made only if the party has initially made a motion for judgment as a matter of law before the case is submitted to the jury.

New trial: upon motion or on judge’s own initiative

1. New trial for flawed procedures: new trials may be granted when the judge concludes that the process leading up to the verdict has been flawed: e.g. admitting evidence that shouldn’t be admitted; improper jury instructions. A party must object to a ruling first and then file a motion for a new trial.

2. New trial for flawed verdicts: a judge may conclude that the result of that trial -...