WHERE WE ARE & WHAT WE’RE DOING

Pleading Pre-trial Trial & Post-trial Appeal

Scope of Review Harmless Error

APPEALScope of Review

3 Steps Identify action appealed from

Procedural posture Distinguish type of issue

Law-Fact-Discretionary Identify scope of review

Varies by types of decision

APPEALScope of Review

Law =De novo

No deferenceto trial court

Fact =Clearly

erroneousFR 52

Defer to trial court

Discretionary =

Abuse of discretion

Defer to trial court

The Legal Standards

Mixed questions of law & fact

=Separate into

law & fact*Here lies swamp

APPEALScope of Review

Problem Set Comments Questions

APPEALScope of Review

Law Defining element & defenses Many procedural questions Many evidentiary questions

APPEALScope of Review

Law Defining element & defenses

Elements of negligence per se Validity of release

Many procedural questoins Req’ts for jurisdiction Req’ts for sj

Many evidentiary questions Req’ts for waiver of doctor-pt privilege

APPEALScope of Review

Fact “Historical Facts” re: Elements

What happened? Tort

Was the autoclave unplugged? Did EH get hepatitis from the tattoo?

Contract? What did the parties say to each other? What did the parties do to fulfill the

contract?

APPEALScope of Review

Fact Facts Relevant to Procedural Issues

When was the summons handed to the defendant?

Did defendant file answers to the interrogatories?

APPEALScope of Review: Fact

Anderson v. Bessemer City, p. 786 FR 52(a)

Clearly erroneous review Role of W credibility

APPEALScope of Review

Exercise of judgment Forum non conveniens

Weighing of factors Rules 11, 26(g) & 37

Whether to impose sanctions Rule 59

Whether to grant motion for new trial

APPEALScope of Review

Exercise of judgment Forum non conveniens

Weighing of factors Rules 11, 26(g) & 37

Whether to impose sanctions

APPEALHarmless Error Rule

So you think you won? Think again!