VOLUME 15: FEDERAL RULES OF CIVIL PROCEDURE III – TRIAL, JUDGMENTS, AND APPEALS
The Final Stages of Litigation
Introduction to Volume 15
Trial is the culmination of the civil litigation process. But most cases never get there. More than 90 percent of federal civil cases end in settlement, summary judgment, or dismissal. For the cases that do go to trial, the Federal Rules provide a detailed framework for jury selection, the presentation of evidence, jury instructions, and post‑trial motions.
Part One covers trial: the right to a jury trial, the process of selecting the jury, the order of trial, motions during trial (judgment as a matter of law), and jury instructions. Part Two covers judgments: the entry of judgment, the effects of judgment (res judicata and collateral estoppel), and relief from judgment (Rule 60). Part Three covers appeals: the final judgment rule, interlocutory appeals, the notice of appeal, the standard of review, and the mandate.
The rules are designed to ensure a fair trial. But they are also designed to ensure finality. A party cannot relitigate what has already been decided. A party cannot appeal every ruling. The system balances the need for correctness against the need for closure.
PART ONE: TRIAL
Chapter 1: The Right to a Jury Trial
The Seventh Amendment preserves the right to a jury trial in “Suits at common law, where the value in controversy shall exceed twenty dollars.” The amendment applies to the states through the Fourteenth Amendment. Minneapolis & St. Louis R.R. Co. v. Bombolis (1916) held that the Seventh Amendment does not apply to the states. But most states have their own jury trial guarantees.
The right attaches to “legal” claims, not “equitable” claims. The distinction is historical. Law courts awarded money damages. Equity courts awarded injunctions, specific performance, and other non‑monetary relief. A party has a right to a jury trial on a legal claim. A party has no right to a jury trial on an equitable claim.
If a case has both legal and equitable claims, the jury decides the legal claims first. The judge then decides the equitable claims, but is bound by the jury’s findings on common issues. Beacon Theatres, Inc. v. Westover (1959).
Rule 38 preserves the right. A party must demand a jury trial in writing. The demand must be filed within 14 days of service of the last pleading directed to the issue. If a party fails to demand a jury trial, the right is waived.
Rule 39 provides that if a jury trial is demanded, the action must be designated on the docket as a jury action. If no demand is made, the court tries the case without a jury.
Chapter 2: Jury Selection (Voir Dire)
Rule 47 governs jury selection. The court may ask prospective jurors questions. The parties may also ask questions, subject to the court’s supervision.
The court and the parties use voir dire to identify jurors who cannot be fair and impartial. A juror who has a bias or prejudice may be excused for cause. The court decides challenges for cause.
Each side also has peremptory challenges. A peremptory challenge allows a party to excuse a juror without giving a reason. Rule 47(b) gives each side three peremptory challenges in most cases. If there are multiple parties, the court may allocate the challenges.
Peremptory challenges may not be used to discriminate on the basis of race. Batson v. Kentucky (1986). The same rule applies to gender discrimination. J.E.B. v. Alabama ex rel. T.B. (1994). A party who believes the other side has used a peremptory challenge to discriminate must raise a Batson challenge. The challenging party must make a prima facie showing of discrimination. The other party must then offer a race‑neutral or gender‑neutral reason for the strike. The court then decides whether the strike was discriminatory.
Chapter 3: The Order of Trial
Rule 43 governs the presentation of evidence at trial. The plaintiff bears the burden of proof. The plaintiff presents its case first.
Opening statements. The plaintiff’s attorney outlines what the evidence will show. The defendant’s attorney may then make an opening statement. The defendant may also reserve the opening statement until after the plaintiff rests.
Plaintiff’s case in chief. The plaintiff calls witnesses and introduces exhibits. Each witness is examined by the plaintiff (direct examination), then by the defendant (cross‑examination), then by the plaintiff (redirect), then by the defendant (recross). The court has discretion to limit the scope of cross‑examination.
Motion for judgment as a matter of law (Rule 50(a)). After the plaintiff rests, the defendant may move for judgment as a matter of law. The defendant argues that the plaintiff has failed to produce sufficient evidence to support a verdict. The court views the evidence in the light most favorable to the plaintiff. If a reasonable jury could not find for the plaintiff, the court may enter judgment for the defendant. If the court denies the motion, the trial continues.
Defendant’s case. The defendant then presents evidence. The defendant may call witnesses and introduce exhibits. The same rules of examination apply.
Motion for judgment as a matter of law (renewed) . After the defendant rests, the defendant may renew the motion for judgment as a matter of law. The plaintiff may also move for judgment as a matter of law at this point.
Closing arguments. The parties summarize the evidence and argue what inferences the jury should draw. The plaintiff argues first. The defendant argues second. The plaintiff may argue again in rebuttal.
Jury instructions. The judge instructs the jury on the law. Rule 51. The parties may submit proposed instructions. The judge must give the jury a fair and accurate statement of the law. The judge may not comment on the evidence. The judge may not tell the jury how to decide the case.
Verdict. The jury deliberates. The jury returns a verdict. The verdict may be general (for the plaintiff or the defendant) or special (answers to specific factual questions). Rule 49.
Polling the jury. At the request of any party, the jury is polled. Each juror is asked whether the verdict is the juror’s verdict. If a juror answers no, the jury must continue deliberating.
Chapter 4: Judgment as a Matter of Law – Rule 50
Rule 50(a) allows a party to move for judgment as a matter of law before the case is submitted to the jury. The motion is made after the opposing party has been heard on the issue. The moving party argues that there is no legally sufficient evidentiary basis for a reasonable jury to find for the non‑moving party.
The standard is the same as the standard for a directed verdict under the old rules. The court views the evidence in the light most favorable to the non‑moving party. If reasonable minds could differ, the motion must be denied. If the evidence is so one‑sided that a reasonable jury could only find for the moving party, the motion is granted.
The motion must be made before the case is submitted to the jury. If the motion is denied, the moving party may renew the motion after the verdict. Rule 50(b).
After the verdict, the moving party may move for judgment as a matter of law. The moving party must have made the motion under Rule 50(a) before the case was submitted to the jury. The court may enter judgment for the moving party if there is no legally sufficient evidentiary basis for the verdict. The court may also order a new trial.
In Unitherm Food Systems, Inc. v. Swift‑Eckrich, Inc. (2006) , the Court held that a party who fails to move for judgment as a matter of law under Rule 50(a) cannot later challenge the sufficiency of the evidence on appeal. The Rule 50(b) motion is available only if the Rule 50(a) motion was made.
Chapter 5: New Trial – Rule 59
Rule 59 allows a party to move for a new trial. The motion must be filed within 28 days after the entry of judgment.
The court may grant a new trial for any reason that would justify a new trial under the common law. Grounds include:
- The verdict is against the weight of the evidence.
- The damages are excessive or inadequate.
- The court made an error of law at trial.
- The court made an error in admitting or excluding evidence.
- The jury was improperly instructed.
- The jury engaged in misconduct.
- There is newly discovered evidence that could not have been discovered in time for trial.
The standard for a new trial is different from the standard for judgment as a matter of law. Judgment as a matter of law is proper only if no reasonable jury could find for the non‑moving party. A new trial may be granted even if there is sufficient evidence to support the verdict, if the court concludes that the verdict is against the great weight of the evidence.
The court has discretion to grant or deny a new trial. The court’s ruling is reviewed for abuse of discretion.
Chapter 6: Relief from Judgment – Rule 60
Rule 60 allows a party to seek relief from a final judgment, order, or proceeding. The motion may be made on the following grounds:
- Mistake, inadvertence, surprise, or excusable neglect.
- Newly discovered evidence that could not have been discovered in time for a Rule 59 motion.
- Fraud, misrepresentation, or misconduct by the opposing party.
- The judgment is void.
- The judgment has been satisfied or discharged.
- Any other reason that justifies relief.
A motion under Rule 60(b)(1), (2), or (3) must be filed within one year of the judgment. A motion under Rule 60(b)(4), (5), or (6) must be filed within a reasonable time.
Rule 60 is not a substitute for appeal. A party cannot use Rule 60 to relitigate issues that were or could have been raised on appeal. The rule is intended to address extraordinary circumstances, not to give the losing party a second chance.
PART TWO: JUDGMENTS
Chapter 7: Entry of Judgment
Rule 58 requires that every judgment be set out in a separate document. The judgment must be entered on the docket. The date of entry is the date on which the judgment is entered on the docket.
The separate document rule prevents a party from mistakenly believing that a ruling is a final judgment. The rule has been relaxed. In Bankers Trust Co. v. Mallis (1978) , the Court held that a party may appeal even if no separate document was entered, if the party had actual notice of the entry of judgment.
The clerk must enter judgment immediately after the jury returns a verdict or after the court announces its decision. The court may direct the clerk to enter judgment on a partial claim under Rule 54(b).
Chapter 8: Res Judicata (Claim Preclusion)
Res judicata is the doctrine that a final judgment on the merits bars a later lawsuit on the same claim between the same parties. The term means “a thing adjudged.”
Three elements:
- A final judgment on the merits. A judgment is final if it ends the litigation. A judgment on the merits may be entered after a trial, after a summary judgment, or after a dismissal with prejudice. A dismissal without prejudice is not a final judgment on the merits.
- Same parties. The parties in the second suit must be the same as the parties in the first suit, or in privity with them. Privity exists if a party’s interests were adequately represented in the first suit. Class actions and suits by trustees are examples of privity.
- Same claim. The claim in the second suit must be the same as the claim in the first suit. The modern test is the transactional approach. If the two claims arise from the same transaction or occurrence, they are the same claim. The plaintiff must bring all claims arising from the same transaction in one lawsuit. Claims that could have been brought but were not are barred.
Res judicata conserves judicial resources. It protects parties from the burden of relitigating the same dispute. It also promotes finality.
Chapter 9: Collateral Estoppel (Issue Preclusion)
Collateral estoppel is the doctrine that a final judgment on the merits bars relitigation of issues that were actually litigated and determined in the first action. The term means “to estop a side.”
Five elements:
- Same issue. The issue in the second suit must be identical to the issue in the first suit.
- Actually litigated. The issue must have been actually litigated in the first suit. An issue that was admitted, defaulted, or settled is not actually litigated.
- Necessarily decided. The issue must have been necessary to the judgment. If the judgment could have been based on another ground, the issue may not be precluded.
- Final judgment. The first judgment must be final.
- Party or privity. The party against whom collateral estoppel is asserted must have been a party to the first suit or in privity with a party.
Collateral estoppel may be used offensively. A plaintiff may use collateral estoppel to prevent a defendant from relitigating an issue that the defendant lost in a prior suit against a different plaintiff. The Court held in Parklane Hosiery Co. v. Shore (1979) that offensive collateral estoppel is permissible, but the court has discretion to deny it if the defendant did not have an incentive to litigate vigorously in the first suit.
Chapter 10: Claim Splitting
Claim splitting is the practice of dividing a single claim into multiple lawsuits. The doctrine of res judicata prohibits claim splitting. A plaintiff must bring all claims arising from the same transaction in one lawsuit. Failure to do so results in the loss of the claims not brought.
In Gonzalez v. Banco Central Corp. (1994) , the Court held that a plaintiff who splits a claim and brings two lawsuits arising from the same transaction may be subject to dismissal of the second suit. The court has discretion to dismiss the second suit, even if the first suit is still pending.
PART THREE: APPEALS
Chapter 11: The Final Judgment Rule
A party may appeal only from a final judgment. 28 U.S.C. § 1291. A final judgment is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.
The final judgment rule prevents piecemeal appeals. A party cannot appeal a ruling on a discovery motion, a summary judgment ruling, or any other interlocutory order. The party must wait until the end of the case.
The rule has exceptions.
Collateral order doctrine. In Cohen v. Beneficial Industrial Loan Corp. (1949) , the Court held that an order that is (1) conclusive, (2) resolves important questions completely separate from the merits, and (3) is effectively unreviewable on appeal from a final judgment may be appealed immediately. Examples: orders denying qualified immunity, orders denying absolute immunity, orders denying motions to compel arbitration.
Rule 54(b) certification. If an action involves multiple claims or multiple parties, the court may direct entry of a final judgment as to one or more claims or parties. The court must find that there is no just reason for delay. The order is appealable.
Interlocutory appeals. 28 U.S.C. § 1292(b) allows the court to certify an order for immediate appeal if the order involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal may materially advance the ultimate termination of the litigation. The court of appeals has discretion to accept the appeal.
Mandamus. The court of appeals may issue a writ of mandamus to correct a clear abuse of discretion by the district court. Mandamus is rare. It is available only when the party has no other adequate remedy.
Chapter 12: Notice of Appeal
The notice of appeal is filed in the district court. Rule 3 of the Federal Rules of Appellate Procedure. The notice must specify the party taking the appeal, identify the judgment or order being appealed, and name the court to which the appeal is taken.
The notice must be filed within 30 days after entry of the judgment. If the United States is a party, the time is 60 days.
The time limit is jurisdictional. If the notice is filed late, the court of appeals must dismiss the appeal. There is no equitable exception. Bowles v. Russell (2007).
If a party files a timely Rule 50(b), Rule 52(b), Rule 59, or Rule 60 motion, the time for appeal runs from the entry of the order disposing of the motion. The motion tolls the time for appeal.
Chapter 13: Standard of Review
The appellate court reviews different issues under different standards.
Questions of law are reviewed de novo. The appellate court gives no deference to the district court’s legal conclusions. The court decides the issue as if it were deciding it in the first instance.
Questions of fact are reviewed for clear error. Rule 52(a)(6). The appellate court may not reverse a factual finding unless it is left with the definite and firm conviction that a mistake has been made. The district court’s credibility determinations are almost never reversed.
Questions of discretion are reviewed for abuse of discretion. The court reviews rulings on discovery, evidentiary rulings, and the grant or denial of a new trial under this standard. The appellate court will reverse only if the district court made a clear error of judgment or applied the wrong legal standard.
Mixed questions of law and fact receive different treatment depending on the nature of the question. If the question is primarily legal (the application of a legal standard to undisputed facts), review is de novo. If the question is primarily factual, review is for clear error.
Chapter 14: The Record on Appeal
The record on appeal consists of the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries. The appellant must order the transcript. The appellant must file a designation of the record.
The appellant may also file an appendix containing the relevant portions of the record. Rule 30 of the Federal Rules of Appellate Procedure. The appendix is optional. Many courts require it.
The appellate court ordinarily considers only the record that was before the district court. The court will not consider new evidence. The party may not introduce evidence on appeal.
Chapter 15: Briefs and Oral Argument
The appellant files an opening brief. The brief must state the issues, the facts, the procedural history, and the argument. The appellee files an answering brief. The appellant may file a reply brief.
The brief must cite the record. It must cite legal authority. It must comply with length limits. Rule 32(a)(7) of the Federal Rules of Appellate Procedure limits most briefs to 13,000 words or 30 pages.
The court may decide the case on the briefs. The court may also hear oral argument. Oral argument is limited to 15 or 20 minutes per side. The attorneys must answer questions from the judges. Oral argument is an opportunity to emphasize the strongest points and to clarify the record.
Chapter 16: The Mandate
After the court of appeals issues its decision, the clerk issues a mandate. The mandate is the formal document that returns jurisdiction to the district court. The mandate issues seven days after the decision, unless a party files a petition for rehearing.
The district court must follow the mandate. The district court may not reconsider issues that were decided on appeal. The district court may act on issues that were not decided. The district court may take further proceedings consistent with the mandate.
A party may petition the Supreme Court for a writ of certiorari. The Supreme Court has discretion to hear the case. The Court grants certiorari in only about 1 percent of cases.
APPENDIX 1: GLOSSARY
Abuse of discretion – The standard of review for discretionary decisions. The appellate court reverses if the district court made a clear error of judgment.
Certiorari – A writ from the Supreme Court to review a decision of a lower court. The Court grants certiorari in only about 1 percent of cases.
Clear error – The standard of review for factual findings. The appellate court reverses only if it is left with a definite and firm conviction that a mistake has been made.
Collateral estoppel (issue preclusion) – The doctrine that a final judgment bars relitigation of issues that were actually litigated and determined.
De novo – The standard of review for questions of law. The appellate court decides the issue as if it were deciding it in the first instance.
Final judgment rule – The rule that a party may appeal only from a final judgment that ends the litigation on the merits.
Interlocutory appeal – An appeal from an order that is not a final judgment. Permitted only in narrow circumstances.
Judgment as a matter of law – A motion for judgment based on the insufficiency of the evidence. Must be made before submission to the jury to preserve the issue for appeal.
Jury instructions – The judge’s statement of the law that the jury must apply.
Mandate – The formal document that returns jurisdiction to the district court after an appeal.
New trial – A motion under Rule 59 asking the court to set aside the verdict and order a new trial.
Peremptory challenge – A challenge to a juror without a reason. Limited in number. May not be used to discriminate.
Res judicata (claim preclusion) – The doctrine that a final judgment bars a later lawsuit on the same claim between the same parties.
Standard of review – The level of deference that the appellate court gives to the district court’s decision.
Voir dire – The process of questioning prospective jurors to identify bias.
APPENDIX 2: SELECT BIBLIOGRAPHY
Baron, Paula. “The Seventh Amendment and the Civil Jury: The Historical and Constitutional Context.” University of Michigan Journal of Law Reform 45 (2012): 551.
Clermont, Kevin M. Civil Procedure. 11th ed. West Academic, 2021.
Friedenthal, Jack H., Mary Kay Kane, and Arthur R. Miller. Civil Procedure. 5th ed. West Academic, 2015.
Glannon, Joseph W. Civil Procedure: Examples and Explanations. 8th ed. Wolters Kluwer, 2018.
Issacharoff, Samuel. Civil Procedure. 4th ed. Foundation Press, 2019.
Marcus, Richard L., Martin H. Redish, and Edward F. Sherman. Civil Procedure: A Modern Approach. 7th ed. West Academic, 2017.
Mullenix, Linda S., Martin H. Redish, and Georgene M. Vairo. Understanding Civil Procedure. 6th ed. LexisNexis, 2017.
Rowe, Thomas D., Jr., Suzanna Sherry, and Jay Tidmarsh. Civil Procedure. 4th ed. Foundation Press, 2020.
Spencer, A. Benjamin. Civil Procedure: A Contemporary Approach. 5th ed. West Academic, 2020.
Subrin, Stephen N., Martha L. Minow, Mark S. Brodin, and Thomas O. Main. Civil Procedure: Doctrine, Practice, and Context. 6th ed. Wolters Kluwer, 2020.
Yeazell, Stephen C., and Joanna C. Schwartz. Civil Procedure. 10th ed. Wolters Kluwer, 2019.
Zuckerman, Adrian A. S. “The Seventh Amendment and the Civil Jury in the Twenty‑First Century.” University of Pennsylvania Law Review 165 (2017): 1877.
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