Civil Procedure Cases And Materials 11th Edition Jack Friedenthal, Arthur Miller, John Sexton, Helen Hershkoff - Solutions

3. Could the jury have properly reached a decision for plaintiff without resolving the issue that the judge said in his explanation he intended the interrogatory to present? If it could not, was it proper to withdraw the interrogatory altogether and say to the jury: “What I am going to do, in an
2. Could the judge simply have rewritten the interrogatory in clearer language and resubmitted it? What reasons mitigate against allowing that practice?
1. Do you believe the interrogatory as first given to the jury was ambiguous? What are the possible meanings of the question? Could the jury answer the question “No” under any of these meanings and still find for plaintiff? If the jury had answered the interrogatory “No,”and a reviewing
3. In Troupe, cited at the end of the principal case, Judge Frank, in a concurring opinion, said, at 234 F.2d at 260 61:On the negligence issue, the judge, at defendant’s request, charged, “It is enough if the steps and paint are commonly used and accepted in the industry at the time.” This
2. What factors are relevant in determining whether to place the burden of persuasion on the issue of contributory negligence on one party rather than the other? Are these same factors involved when deciding who shall be required to plead the issue of contributory negligence? Why might the two
1. The opinion in this case speaks of the “burden of proof of contributory negligence.” In this book, we use the term “burden of persuasion” when we are referring to the kind of burden involved in Alexander. There is another kind of burden the burden of initially putting in evidence on an
3. In KENNEDY v. SILAS MASON CO., 334 U.S. 249, 256–57, 68 S.Ct. 1031, 1034, 92 L.Ed. 1347, 1350–51 (1948), Justice Jackson, speaking for the Court, said: “[S]ummary procedures, however salutary where issues are clear-cut and simple, present a treacherous record for deciding issues of
2. A motion for summary judgment may be useful even though the moving party believes it will be unsuccessful. What advantage did defendant in Alderman gain by moving for summary judgment, rather than moving to dismiss? Reread the third paragraph of the case.Should plaintiff be able to amend a
1. If very specific allegations of all of the facts giving rise to plaintiff’s cause of action were required to be set forth in the complaint, would it have been possible to handle the Alderman case by a motion to dismiss or a demurrer rather than waiting for the summary judgment phase? To the
4. Is the court in DiMichel correct in not allowing videotapes to be disclosed until after plaintiff has been deposed? If the court is truly following a policy of open discovery, why does it matter when the videotapes are disclosed?
3. Is the holding in DiMichel limited to videotaped evidence or does it apply to other types of impeachment evidence as well? Suppose plaintiff is deposed and testifies that prior to the accident being sued on she had never suffered a disabling injury. Plaintiff then attempts to have defendant
2. The court in DiMichel held that materials prepared in anticipation of trial normally are exempt from discovery, unless a party can show a substantial need and an undue hardship. Do you agree that surveillance videotapes present such a situation? In general, why are materials prepared for trial
1. Discovery was not available at common law; to the contrary, the common law courts in England “recognized no rule requiring prior notice of intended evidence to be given to the opponent or furnishing legal process for obtaining such information * * *.” The ability of the parties to exchange
5. Suppose that both Temple and Synthes do not want the doctor and the hospital to be added as parties and the court does not order that they be added. Could the doctor and the hospital join the federal suit of their own accord? See Federal Rule 24. Should Temple and/or Synthes be able to stop them
4. When this case returns to the district court, could the court order Synthes to file a third-party complaint against the doctor and the hospital under Federal Rule 14(a)? Should a court ever have the power to order parties added to a lawsuit? Why?
3. What do you make of the Fifth Circuit’s concern with the potential for inconsistent judgments? Does the Supreme Court find that this concern is not warranted? Or does it find that there are other more important considerations? If so, what are they?
2. Although the Court’s opinion in Temple did not specify the citizenship of Dr. LaRocca and the hospital, they were in fact citizens of Louisiana, and so all plaintiffs were citizens of states different from those of the three defendants. See Temple v. Synthes Corp., 130 F.R.D.68, 69 n.1 (E.D.
1. Why do you think Temple did not name Dr. LaRocca and the hospital as defendants in his federal suit? Why would Temple seek to duplicate his time and effort by litigating a suit in federal court at the same time that he is litigating one in state court with respect to precisely the same injury?40
5. Suppose that after the motion to dismiss had been granted Case discovered a letter agreement dated after the contract and signed by all of the parties stipulating that the insurance agency agreement could be terminated only for “good cause.” Should he be able to amend his complaint and sue
4. What was the effect of the dismissal in Case? Should plaintiff have been permitted to amend the complaint and start again? Could plaintiff interpose a new and slightly altered complaint that would survive another motion to dismiss?
3. Suppose a valid legal theory did exist that would have entitled Case to some relief, but that Case neglected to invoke it in his pleading. Would the court have been justified in dismissing the complaint on the principle that “it is [not] the duty of the trial court or the appellate court to
2. Which of the objectives of pleading discussed in the Outline of a Civil Action, pp. 10 12, supra, was most significantly involved in this case?
1. Can you identify the different claims that Case alleged in his complaint?
5. You will later become familiar with state statutes that confer upon their courts power to summon out-of-state motorists to defend actions arising out of their operating automobiles within the state. See p. 86, infra. Tickle had first sought to serve Barton under a statute of this type, but
4. When the case is reconsidered by the West Virginia Circuit Court on remand, Barton’s lawyer must prove his allegations if Barton is to avoid trial in West Virginia. What problems do you foresee in his being able to prove them, and how should he proceed to do so?
3. In thinking about the cases you read, try to consider how the court might approach the problem presented by a particular case with certain facts changed. For example, should service in West Virginia in the following situations be treated in the same way as it was under the facts alleged in the
3. In what court was the Capron suit commenced? Under the First Judiciary Act of 1789, Congress established two levels of courts below the Supreme Court: the district courts and the circuit courts. The circuit courts exercised both original and appellate jurisdiction, and had original jurisdiction
2. Read Article III, § 2 of the United States Constitution, which is set out in the Supplement. What specific language in that Section is pertinent to the Supreme Court’s opinion in Capron?
1. The Supreme Court of the United States regarded the defect in this case as extremely serious. Does the fact that it was the plaintiff who brought the case to the Supreme Court make this particularly clear? Why is such significance attached to this error?
4. In Avista Mgmt., Inc. v. Wausau Underwriters Ins. Co., 2006 WL 1562246 (M.D. Fl.2006), the parties could not agree on where to hold a deposition and sought the court’s intervention. In response, the judge ordered the parties to meet on the front steps of the courthouse and to “engage in one
3. Studies show that a party’s willingness to accept a court’s adverse judgment often depends on whether the court’s process is regarded as fair. Perceptions of procedural fairness are linked to four critical principles: “voice,” or the opportunity to present one’s own side of a story;
2. Courts typically serve two interrelated social goals. The first is conflict resolution, whereby “in the interests of preserving the peace, society offers through the courts a mechanism for the impartial judgment of personal grievances, as an alternative to retaliation or forcible self-help.”
1. The procedural rules that you are studying may seem to be “natural” or “neutral,” but in practice they reflect complex political choices among a range of policies and goals. In the passages that follow, can the different perspectives on procedural values be reconciled, or would

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