Multistate Essay Examination (MEE) Civil Procedure Flashcards

24 sample cards from the Civil Procedure deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What are the required initial disclosures under Rule 26(a)(1)?

   Without awaiting a request, parties must disclose (1) names of individuals likely to have discoverable information they may use; (2) copies/descriptions of documents they may use; (3) a computation of damages; and (4) any insurance agreement that may satisfy the judgment.

2. List the principal discovery devices and which may be used on non-parties.

   Depositions (Rule 30 — parties AND non-parties, non-parties via subpoena); interrogatories (Rule 33 — parties only, max 25); requests for production (Rule 34 — parties; non-parties via Rule 45 subpoena); physical/mental exams (Rule 35 — parties, requires court order and good cause); requests for admission (Rule 36 — parties only).

3. What is the standard for a Rule 35 physical or mental examination?

   A court may order a party (or a person in a party's custody/control) to submit to an exam only when that party's physical or mental condition is IN CONTROVERSY, and only for GOOD CAUSE shown. It is the only discovery device requiring a court order.

4. What is the meet-and-confer requirement and the role of a motion to compel?

   Before moving to compel under Rule 37(a), the movant must certify a good-faith attempt to confer with the opposing party to resolve the dispute. If discovery is improperly withheld, the court may order it produced and award expenses.

5. Describe the escalating sanctions available under Rule 37.

   For failure to obey a discovery order: directing facts be taken as established, prohibiting evidence, striking pleadings, staying proceedings, dismissing the action, default judgment, or contempt — plus reasonable expenses/attorney's fees. Failure to preserve ESI (Rule 37(e)) allows curative measures or, on a finding of intent to deprive, adverse-inference instructions or dismissal.

6. Distinguish the attorney-client privilege from the work-product doctrine.

   Attorney-client privilege protects confidential COMMUNICATIONS between attorney and client made to obtain legal advice; it is absolute (unless waived/exception). Work product protects MATERIALS prepared in anticipation of litigation; it is qualified — discoverable on a showing of substantial need and inability to obtain the equivalent without undue hardship.

7. What is 'opinion' (core) work product and how is it protected?

   Opinion work product — an attorney's mental impressions, conclusions, opinions, or legal theories — receives heightened, near-absolute protection. Courts must protect it even when ordering disclosure of ordinary fact work product.

8. State the Erie doctrine's core holding.

   In diversity cases, a federal court must apply state SUBSTANTIVE law and federal PROCEDURAL law. There is no general federal common law (Erie R.R. v. Tompkins).

9. How does a court decide whether a law is substantive or procedural under the Erie analysis?

   If a valid Federal Rule of Civil Procedure or federal statute is on point, the federal rule applies (so long as it is valid under the Rules Enabling Act / Constitution — Hanna). If no federal rule is on point, courts apply the 'outcome-determinative' test, considering the twin aims of Erie (discouraging forum-shopping and avoiding inequitable administration of the laws).

10. Which issues are clearly 'substantive' and governed by state law under Erie?

    Statutes of limitations, choice-of-law rules, tolling rules, elements of claims/defenses, and standards for awarding damages (e.g., caps) are substantive and governed by state law. A federal court in diversity applies the choice-of-law rules of the state in which it sits.

11. What is the standard for granting summary judgment under Rule 56?

    Summary judgment is granted when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court views evidence in the light most favorable to the non-movant; a genuine dispute exists if a reasonable jury could return a verdict for the non-movant.

12. Distinguish voluntary dismissal under Rule 41(a) from involuntary dismissal under Rule 41(b).

    Voluntary (41(a)): plaintiff may dismiss once without court order before the answer/SJ motion, without prejudice (a second voluntary dismissal of the same claim operates as an adjudication on the merits). Involuntary (41(b)): court-ordered dismissal for failure to prosecute or comply, which operates as an adjudication on the merits (with prejudice) unless stated otherwise.

13. When is a default judgment entered, and what must a plaintiff show?

    When a defendant fails to plead or defend, the clerk enters a default. The clerk may enter default judgment for a sum certain; otherwise the plaintiff must apply to the court, which may hold a hearing on damages. A defaulting party who appeared must get 7 days' notice of the judgment application.

14. What is the standard and timing for judgment as a matter of law (JMOL) and renewed JMOL under Rule 50?

    JMOL (Rule 50(a)) may be granted during trial after the opposing party has been fully heard when no reasonable jury could find for that party. A renewed JMOL (Rule 50(b)) after the verdict is only available if a Rule 50(a) motion was made before the case went to the jury; it must be filed within 28 days of judgment.

15. What is the Seventh Amendment right to a jury trial, and the law/equity distinction?

    The Seventh Amendment preserves the right to a jury trial in federal civil cases for actions at LAW (legal claims seeking money damages) but not for equitable claims (injunctions, specific performance). When legal and equitable claims are joined, the jury decides the legal issues first.

16. What is the standard for a new trial under Rule 59 versus remittitur/additur?

    A new trial may be granted for errors at trial, a verdict against the great weight of the evidence, or an excessive/inadequate verdict. Remittitur lets a court condition denial of a new trial on the plaintiff accepting a reduced award; ADDITUR (increasing a verdict) is UNCONSTITUTIONAL in federal court under the Seventh Amendment.

17. Define claim preclusion (res judicata) and its elements.

    Claim preclusion bars relitigation of claims that were or could have been raised. Elements: (1) a valid final judgment ON THE MERITS, (2) the same claimant and defendant (same parties or privies), and (3) the same claim/cause of action (same transaction or occurrence).

18. Define issue preclusion (collateral estoppel) and its elements.

    Issue preclusion bars relitigation of an ISSUE that was (1) actually litigated and (2) actually determined, (3) where that determination was ESSENTIAL to a valid final judgment. The party to be precluded must have had a full and fair opportunity to litigate the issue.

19. Distinguish offensive from defensive non-mutual issue preclusion.

    Defensive non-mutual: a new DEFENDANT uses a prior judgment to stop a plaintiff from relitigating an issue the plaintiff lost (generally allowed). Offensive non-mutual: a new PLAINTIFF uses a prior judgment to establish an issue the defendant lost (allowed at the court's discretion, considering fairness and whether the defendant had incentive to litigate fully).

20. Which judgments are considered 'on the merits' for claim preclusion purposes?

    Judgments after trial, summary judgment, judgments on the pleadings, and dismissals with prejudice are on the merits. Dismissals for lack of jurisdiction, improper venue, or failure to join a required party are NOT on the merits and do not bar refiling.

21. State the final judgment rule and the main statutory basis for appeals.

    Under 28 U.S.C. § 1291, appeals generally lie only from FINAL judgments — decisions that end the litigation on the merits, leaving nothing but execution. Interlocutory (non-final) orders generally cannot be appealed immediately.

22. List the major exceptions allowing appeal of non-final orders.

    (1) Interlocutory injunctions (§ 1292(a)); (2) § 1292(b) certified controlling questions of law (with court of appeals' permission); (3) Rule 54(b) entry of final judgment on some but not all claims/parties; (4) the collateral order doctrine; and (5) writ of mandamus.

23. What is the collateral order doctrine?

    A narrow exception permitting immediate appeal of an order that (1) conclusively determines a disputed question, (2) resolves an important issue completely separate from the merits, and (3) would be effectively unreviewable on appeal from a final judgment (e.g., denial of qualified immunity).

24. What standards of review do appellate courts apply to findings of fact, conclusions of law, and discretionary rulings?

    Questions of law are reviewed DE NOVO. A trial judge's findings of fact are reviewed for CLEAR ERROR (Rule 52(a)); jury fact findings are reviewed even more deferentially (reasonable jury standard). Discretionary rulings (e.g., evidentiary, discovery) are reviewed for ABUSE OF DISCRETION.

What this deck covers

Civil Procedure flashcards FAQ