6.1 History and Policy Behind Party and Claim Joinder


6.2 Consolidation, Reparations and Severance




6.3 Who Is a Proper Party--Real Parties in Interest, Capacity to Sue, and Standing


A threshold issue in all civil litigation is whether the parties to the action meet the necessary criteria to warrant them invoking the judicial process.  This question involves several different considerations. In particular it is necessary to determine (1) whether the party is “real party in interest”; (2) whether the parties have the legal “capacity” to sue or be sued; and (3) whether the plaintiff has "standing."  An examination of each of these requirements follows.


real party in interest rule provides that “every action be prosecuted in the name of the real party in interest.


Capacity to sue or be sued refers to an individual's ability to represent her interests in a lawsuit without the assistance of another.


A party must have “standing" to sue.


All standing issues are rooted in the constitutional restriction that courts may adjudicate only “cases or controversies.” If a federal court decides that the party bringing the action is not associated sufficiently with the controversy.


6.4  Permissive Party Joinder


However, modern business transactions frequently embrace more than two individuals and when those transactions go awry or some injury occurs, it becomes necessary to decide what persons properly may be joined in a single lawsuit.


The equity versus the law courts.


The first requirement for permissive party joinder under most modern procedural rules is that the persons to be joined must assert or have asserted against them some right to relief arising out of the transaction or occurrence or series of transactional or occurrences that comprise the subject matter of the action. The second requirement is that there must be a question of law or fact common to the parties who are to be joined and those already in the action.


The second modern requisite for permissive party joinder is that a question of law or fact common to all the parties must be present.


6.5 Compulsory Party Joinder


The joinder of persons to an action can be classified in either of two ways, permissive or compulsory. The latter classification can be divided further into two subcategories-“necessary” parties who must be joined if feasible, but whose non-joinder will not result in dismissal and “indispensable” parties whose joinder is compelled even at the cost of dismissing the action.




6.6 The Standard for Claim Joinder--In General


6.7 Counterclaims


A counterclaim is any affirmative claim for relief asserted by a pleader--typically the defendant--in the defensive pleadings against an opposing party-typically the plaintiff.


Under modern procedural rules, the ability to interpose a counter claim is not limited in any way as to nature, subject matter, or relationship to the original claim.


6.8 Cross-Claims


A cross-claim is any claim asserted by one party against a coparty.  Under Federal Rule 13(g), a cross-claim must arise out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or it must relate to property that is the subject matter of the original.


6.9 Third-party Practice (Impleader)


Impleader, or third-party practice, is the procedural device enabling the defendants in a lawsuit to bring into the action an additional party who may be liable for all or part of the original plaintiff’s claim against the defendant.







7.1 History, Purposes and Techniques of Modern Discovery


[Skipped two paragraphs here of general description of discovery.]




7.2 Scope--In General


The scope of discovery is extremely broad under the Federal Rules and comparable state practice.  Information can be obtained regarding any matter, not privileged, that is relevant to the subject matter involved in the action, whether or not the information sought will be admissible at trial, just so long as it is reasonable calculated to lead to the discovery of admissible evidence.


If the monetary limits of a defendant's insurance policy can be discovered in order to obtain reasonable settlements, then it can be argued forcefully that a defendant’s general financial ability should be discoverable for the same purpose, particularly if the defendant is self-insured. Unlike the insurance situation, however, general discovery of a defendant's assets involves an invasion of privacy of such a magnitude that courts typically have not allowed it.


7.3 Discovery Prior to the Commencement of the Case


7.4 Privileged Matters


All jurisdictions provide that a party cannot obtain privileged matter through discovery.  Privileged matter refers to information that falls under the format privileges as recognized under the rules of evidence. The person asserting a claim of privilege has the burden of establishing its existence. This matter is excluded from discovery in order to protect the privacy any secrecy of individuals in certain relationships. These include the lawyer-client, doctor-patient, priest-penitent, husband-wife, and other similar privileges that exist in particular jurisdictions.  Persons in a privileged relationship need not reveal any communication that occurred between them.  Encouraging confidence in these relationships is deemed more important than allowing full access to this information for litigation purposes.


7.5 Material Prepared for Litigation--The “Work-Product” Doctrine


In 1947 the Supreme Court, in the now famous case of Hickman v. Taylor, in the absence of showing of need, an opposing party could not discovery information obtained by an attorney while preparing for litigation. This so-called “work-product" rule was based on the idea that every attorney should be free to investigate all aspects of a case, whether favorable or unfavorable to the attorney's client, without fear that the opposing partly simply could obtain unfavorable matters and put them to use.


“Work-product exception to discovery”


The most basic principle is that any notes, working papers, memoranda, or similar materials prepared by an attorney in anticipation of litigation are protected from discovery.


The current federal rule gives the most complete protection to information, rewarding "the mental impressions, conclusions, opinions, or legal theories of an attorney.”  This formulation reflects the approach taken by the Hickman Court to the need to allow attorneys to prepare their cases fully without concern their opponents will be allowed to wait and take advantage at the last minute. The strategy of counsel is immune from discovery; only equal access to the facts is assured by the discovery system.


Federal Rule 26(b)(3)


7.6  Expert Information


In 1993, the federal discovery rules were substantially altered with regard to experts who are expected to testify at trial. Within specific time limits, normally not less than 90 days prior to trial, a party must reveal to the other parties in the case the identity of any such experts and must provide a written report prepared and signed by the expert.  The report must include the expert’s opinion and the basis and reasons therefore, and must contain any data or information upon which the opinion was based and any exhibits to be used in support of the opinion.  Moreover, the statement must list the qualifications of the expert.




7.7 Mandatory Planning Conference and Required Disclosures


The information that must initially be disclosed under the federal rule includes (1) the names and addresses of those individuals "likely to have discoverable information relevant to the disputed facts alleged with  particularity in the pleadings'" (2) a copy or description of all documents or tangible items in the party's custody or control that are relevant to such disputed facts. (3) a computation of any damages claimed, not privileged or otherwise protected from discovery, upon which those computations are based, and (4) copies of any insurance agreements that may be liable to satisfy all or part of a judgment against the party.


7.8 Oral Depositions and Depositions on Written Questions


An oral deposition allows the attorneys for the various parties in the case to confront and question any person, including a party, regarding the subject matter of the case.  That person (the “deponent”) is placed under oath by an officer who is in charge of the deposition. This can be anyone who is authorized to administer oaths or anyone upon whom the parties agree.  Although the deponent will normally be present, the parties, by written agreement or through a court order, can take a deposition over the telephone or by other remote electronic means. Invariably, the parties designate as officer the reporter who records the questions, the answers, and any objections made the Parties or the witness.  In most jurisdictions, when the deposition has been concluded, the reporter prepares a transcript, which the deponent then is called upon to sign. This requirement has proven difficult for reporters who frequently have trouble contacting non-party witnesses. Therefore, Federal Rule 30(e), as amended in 1993 provides only that a deponent will be offered the chance to review the transcript or recording prior to the completion of the deposition. In such a case, the deponent may within 3O days after notice that the transcript or recording is available, sign a statement reciting any changes in form or substance and the reasons for making them.  These latter provisions may become important if the deposition, or portion of it, is offered into evidence at trial.


Oral depositions have several advantages and disadvantages.  An oral deposition permits the attorney to observe a potential witness while undergoing examination, thus giving a strong indication of how the witness will appear at trial if called to testify.  It also permits the attorney to pin down the witness with regard to the details of his observations, which can be an advantage both to the attorney who will call witness at trial and to an opposing attorney who may cross-examine the witness as to any inconsistencies.  The fact that the witness is present and answering the questions directly is extremely important because the answer to one question often dictates what the next one will be.  Thus, the form of discovery has distinct advantages over a procedure in which a witness responds in writing to questions while at home or in his office, with the benefit of counsel, and with no direct confrontation by the questioning attorney.


The chief drawback to oral impositions is their expense. Typically, each party must pay for the time that his attorney spends in connection with the deposition.  In addition, a party will have to pay for any transcriptions of the deposition received and, perhaps, some attorney fees and expenses.


A party may take the deposition of any person whether or not a party, who has information relevant to the subject matter.  In addition, many rules provide that a party may notice the deposition of a corporation or association, requiring the latter to produce the person or persons having knowledge of the subject matter.


Under modern discovery rules, an attorney may schedule a deposition merely by notifying the opposing attorney of the time and the place where the deposition is to be taken.


Most commonly, the details as to a deposition are worked out among all of the attorneys in order to accommodate their schedules and that of the person to be deposed.  If the parties cannot agree on the time, place, or details of the examination, then one may obtain a court order with respect to the disputed matters.


Whenever, as is often the case, the person whose testimony is sought is one of the parties, there is no need for a subpoena.  A party can he required to attend and to bring to the deposition documents and other items of evidence in his possession merely by including a demand therefore in the notice of a deposition.


7.9 Written Interrogatories


7.10 Requests for Admission




8.1 Nature and Purposes of a Pretrial Conference


Thus pretrial conferences and plans may be used as a management tool, controlling motion and discovery practice, preparing for and guiding the trial informing the parties what issues and facts are in controversy, and facilitating the decision of the case on its merits. They also may be utilized to encourage settlement of cases, directly or through alternative dispute resolution procedures, thereby relieving the pressure on court calendars.  There is a continuing debate over which role should be primary, although there is a definite trend toward settlement, at least in the federal courts.  Those emphasizing preparation for trial argue that active judicial intervention causes coerced settlements, which leads to dissatisfaction with the judicial system and raises the possibility of prejudice in the settlement process.  Properly used to prepare for trial, the pretrial process undoubtedly also encourages settlements because it makes parties aware of the strengths and weaknesses of their cases.


8.2 Procedural Aspects of the Pretrial Conference


8.3 The Trial Order




8.1 Nature and Purposes of a Pretrial Conference


Thus pretrial conferences and plans may be used as a management tool, controlling motion and discovery practice, preparing for and guiding the trial informing the parties what issues and facts are in controversy, and facilitating the decision of the case on its merits. They also may be utilized to encourage settlement of cases, directly or through alternative dispute resolution procedures, thereby relieving the pressure on court calendars.  There is a continuing debate over which role should be primary, although there is a definite trend toward settlement, at least in the federal courts.  Those emphasizing preparation for trial argue that active judicial intervention causes coerced settlements, which leads to dissatisfaction with the judicial system and raises the possibility of prejudice in the settlement process.  Properly used to prepare for trial, the pretrial process undoubtedly also encourages settlements because it makes parties aware of the strengths and weaknesses of their cases.


8.2 Procedural Aspects of the Pretrial Conference


8.3 The Trial Order






9.1 History and Purpose


As a result, most jurisdictions today have adopted a formal procedure, called a motion for summary judgment.  Summary judgment can be sought and granted not only on an entire claim or defense, but as to any portion thereof.   Although the main purpose of summary judgment is to avoid useless trials.


9.2 Procedure for Obtaining a Summary Judgment




9.4 The Entry of Default and Default Judgment


Default judgments can be entered in three types of situations. In the first, the defendant never appears or answers, in response to the plaintiff’s complaint. In the Second, Defendant makes one appearance but fails to file a formal answer or appear at trial.  In the third, the defendant fails to comply with some procedural requirement, time frame, or court order during the pretrial proceedings and the court enters a default judgment as a penalty.




Voluntary and Involuntary Dismissals




10.1 A General Description


…the case is "at issue," which means that the pleadings have been completed and filed.


In cases in which there is a right to jury trial, one of the major decisions that must be made is whether to invoke the right or to proceed to trial before a judge.


A variety of factors determine whether a particular litigant would prefer a judge or a jury trial.  In many courts the nonjury calendar is fairly short whereas there are substantial delays before one can obtain a jury.  If a litgant has a strong case and needs money to pay bills, the less delay, the better.  Statistical studies indicate that judges and juries tend to agree on liability in the large majority of cases, although juries seem to have a greater disposition to find against government and corporate defendants and to provide large awards in those cases.  Much depends upon the specific case, the nature of the community in which it is to be tried, the lawyer's personal success in past jury cases….designed to raise the stakes for cost--and risks--of going to trial especially before a jury are so high that settlement is often the only rational course.  Jury trials take considerably longer than court trials; there is an elaborate jury selection process, arguments are longer, recesses are more frequent, in general, more witnesses will be called.


The following brief description of a trial illuminates further some of the differences between judge and jury cases.


The first order of business in a jury trial is selecting the jurors, the mechanics of which are discussed later. Counsel for each of the parties will attempt to assess which of the potential jurors will identify with her client or the client's interests.  In general, the lawyer can make only an educated guess as to which individuals will be favorably disposed.  Even after fairly extensive questioning on voir dire, a person's true feelings may remain hidden.


Generally speaking, in jury cases the order of trial will be as follows:


1. Plaintiff s opening statement

2. Defendant's opening statement

3. Plaintiff s presentation of direct evidence

4. Defendant's presentation of direct evidence

5. Plaintiffs presentation of rebuttal evidence

6. Defendant's presentation of rebuttal evidence

7. Opening final argument by plaintiff

8. Defendant's final argument

9. Plaintiff s closing final argument Instructions to the jury


When the issues in the action are such that the burden of proof falls mainly upon defendant, the order of the parties often will be switched.


In nonjury cases, the order is strictly up to the trial judge and the proceedings generally will be far less formal. Often the court will dispense with opening statements because the judge will have become familiar with the issues through conferences with counsel. Frequently, the court will request that the attorneys forgo closing arguments, and there never will be a need for formal instructions.


In jury trial cases, the opening statements are considered by most litigating attorneys as crucial. According to one author, they determine the outcome in more than fifty percent of cases, perhaps even more.


When a witness is called to testify, she is first sworn to tell truth. Then the attorney who called the witness proceeds to ask questions on direct examination. The questions may be pointed and sharp or they may call for a narrative of events, depending upon the nature of the issues and the personality of the particular witness.  Normally, on direct examination the attorney is not permitted to ask leading questions, that is, questions that suggest the answer desired.  For example, a witness may be asked, “What color was the traffic light when defendant entered the intersection?,” but not “Defendant drove right through the red light didn't he?" This general rule is not applied when the witness is an opposing party or otherwise is shown to be hostile to the party who called her.  Moreover, the trial judge has discretion to permit the use of leading question to expedite the introduction of background information.


10.2 The Law of Evidence


First, courts should not waste time receiving worthless information.  To be relevant, evidence need only have the capacity to help in the decision.


A second reason for excluding information from trial is that information may engender such harm that it should not be admitted into evidence.


Hearsay is defined as a statement made out of court that is offered to prove the truth of the matter stated. Hearsay is considered inherently prejudicial because the party against whom it would be used would not have an opportunity to cross-examine the person who made the statement at the time it was made.  The speaker may have been joking, or guessing, or even deliberately lying.


Exceptions to the general prohibition against hearsay evidence fall into two basic categories, one in which circumstances help to assure that the evidence is reliable, and another in which the nature of the issue is such that it is not likely that other evidence exists to prove the matter in question. Examples of the first category include spontaneous utterances.


For similar reasons, evidence of subsequent repairs or insurance also generally is inadmissible. Thus, in a tort action, the fact defendant made repairs to the instrumentality that caused the harm is not admissible to establish that defendant was at fault.  Moreover, the fact that defendant was insured for the harm that resulted is not admissible to show….


Most notable are those involving attorneys and clients, doctors and patients, mental health practitioners and patients, religious leaders and parishioners, and husbands and wives.


Other privileges exist to protect specific types of information in special circumstances. For example, in many situations neither the government nor members of the news media are required to reveal the names of their informants. Without that protection, sources of important information needed by society would not be willing to come forward.


Most of the real evidence introduced at trial is in the form of documents. There are two special rules that govern the admissibility of documents. First is the rule of authentication, that requires a showing that a document is what its proponent claims it to be.


A second rule relating to documents is the so-called “best evidence" rule. The name "best evidence" is highly misleading.  Rather the best evidence rule requires a party to introduce the original of a document or to establish that the original has been lost or destroyed before other evidence of the document's contents will be admitted.



Chapter 11 JURY TRIAL




11.1 The Origins and Role of Jury Trial in Modern Society


The principal lines of attack on jury trial divide along two axes. The first challenges the basic unfairness and inefficiency of trial by a group of citizens unskilled in the application of frequently particularized and difficult legal concepts; the second is concerned with the cost the judicial system caused by the delays inherent in the jury process.


As will be discussed later sections, the Supreme Court has construed the availability of the right to jury trial under the Seventh Amendment expansively so as to give it a highly dynamic quality.


Those who see the jury as an oppressive force, functioning in an essentially unpredictable, unknowledgeable, and unregulated manner.


Most proceed from a basic assumption that trial by jury preserves certain fundamental American  perceptions about the nature of justice and its interaction with various social processes.


The Supreme Court in the case of Beacon Theatres, Inc. v. Westover and its progeny has reaffirmed the historical commitment to, and continuing importance of, the right to civil jury trial in the American system, at least for the federal courts. Thus, the Seventh Amendment has been interpreted as meaning that trial by jury is the normal and preferable mode of disposing of issues of fact in civil cases at law as well as in criminal cases.


11.2 The Judge-Jury Relationship


Most civil trials in the United States are conducted before a judge sitting without a jury and acting both as fact finder and a law applier. What is the jury's function?


This foreshadowed the establishment of the now familiar adversarial systems which is based on the philosophy that the fairest and most efficient process for arriving at justice the evaluation by the jury of the testimony presented by both parties in open court.


Today the jury performs three main functions: (1) determining what the facts are; (2) evaluating the facts in terms of the legal consequences as formulated by the trial judge in the jury instructions; ands (3) presenting the result of its deliberations in the form of a verdict.


The heartland of the jury’s domain is determining, often from competing and conflicting evidence, the facts germane to a given dispute, and deciding how the relevant law should apply to those facts. On, occasion, the evidence is incomplete and the jury must infer the existence or nonexistent of certain facts.


For example, consider the facts of one well-known case on this subject.  A railroad switchman was found unconscious in a dark railway yard near a switching point on the track.  He later died, apparently from a blow to the back of his head, without regaining consciousness.  There were no known eye-witnesses to the fatal event. The railroad advanced 'the theory that the decedent was murdered; the decedent's estate offered the theory that a mail hook negligently left dangling from the side of a mail car on a passing train struck and killed the decedent.  Although the facts seemed to support the inference chains that formed the basis of both theories equally, the jury was allowed to render a verdict in terms of what if felt was the more reasonable set of set of inferences and to discard or disbelieve facts inconsistent with its conclusion.  In discussing the role of the jury in this situation, the Supreme Court said:


It is no answer to say that the jury's verdict involves speculation and conjecture. When ever facts are in dispute or the evidence is such that fair-minded man may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable reference


It is commonplace to say that it is the jury's responsibility to determine what the facts are. The law/fact dichotomy has come to represent the division between the functions of the court and those of the jury.


With the movement away from the natural law philosophy.


The typical distribution of responsibility between judges and jury in an action on a written instrument is as follows: The jury decides whether contract exists. The judge determines whether that contract is ambiguous.  When the contract is ambiguous, its meaning is determined by the jury from evidence introduced by the parties; if the contract is unambiguous, the court interprets and applies its language.


In an action in tort for injuries allegedly sustained as the result of the defendant's negligent driving, factual questions, such as whether the driver slowed down approaching an intersection or maintained a proper lookout at the time of the accident, ordinarily are determined by the jury.  Whether the driver had the duty to slow down is a question of law to be determined by the judge, as is the task of defining the general standard of conduct of the hypothetical reasonably prudent person. Application of that standard of conduct to circumstances of the case--namely, was the defendant driving with sufficient caution in approaching the intersection to meet the reasonable person test--is ordinarily a jury question.


The judge performs several major duties in a jury case.  In addition to ruling on all the pretrial motions and preliminary issues, "the trial judge screens the evidence and determines what is relevant and how much is sufficient to permit the jury to make a finding on a given proposition.  The judge also decides when judicial notice is taken of certain issues so that they need not be proved at trial, as well as what rules of substantive law should be applied, how best to instruct the jury regarding those rules, and what type of verdict should be rendered.  The judge also has wide latitude in structuring the trial.


Through control over the admission of evidence, the court may so narrow the scope of triable factual issues that jury's range of inquiry is very much limited.  Moreover, through the instructions given the jury, the judge may circumscribe the capacity of the jury to ignore the line between questions of law and fact.  The more precise the instructions, the less opportunity there is for the jury to invoke its own standard of conduct.


In addition, the judge has the power to choose the type of verdict to be rendered by the jury.   As the form of a verdict becomes more specific, freedom of the jury to go its own way necessarily is reduced.




11.3 The Right to Jury Trial-In General


In the federal courts, Federal Rule 38(a) preserves “the right of trial by jury as declared by the Seventh Amendment * * * to the parties inviolate."  Although this standard, like the Seventh Amendment itself appears to be neutral--that is, merelv preserving a right that already exists-the merger of law and equity in the federal courts has had profound implications for the modern scope of the jury trial right in those courts.  As will be discussed later, the effect of the Federal Rules has been to consolidate what formerly were two separate jurisdictions into a single form of action, with the result that remedies once available only in equitable proceedings now are available in “civil" actions having the attributes of both equity and law. Since the Supreme Court has held that the constitutional right to jury trial is applicable to these proceedings, the clear effect of the rules has been to enlarge the availability of the jury right.


Because there is no constitutional right to NONJURY trial in the federal court system, [this is a confusing sentence] nothing in the Seventh Amendment or in Article III precludes Congress from extending jury trial to non-common law actions. Hence, when a statute expressly provides for trial by jury, there is no doubt that the right obtains.  For example, the Seventh Amendment applies only to suits at common law, and because there was no right to sue the sovereign at common law, there is no constitutional right to jury trial in an action brought against the United States. A jury trial right in a suit against the United States may exist, however, when a statute expressly or impliedly so provides.


11.4 Jury Trial in the Federal Courts-The Seventh Amendment and the Historical Test


The Seventh Amendment to the Constitution preserves the right to jury trial in the federal courts as it existed at common law.  It thus frequently is said to create an “historical test" for determining when the jury right attaches.


As discussed earlier, in 1791, the English legal system was divided into separate equity and common-law courts.


There was a right to jury trial only in the common-law courts; suits in equity were tried to one of the Kings chancellors.


Determining which actions belonged to law and which to equity for the purpose of delimiting the jury trial right continues to be one of the most perplexing questions of trial administrations. The major problem is that a great deal of overlap existed between the two English systems in 1791. Further, the fusion of law and equity into a single civil action with the adoption of the Federal Rules of Civil Procedure in 1938 destroyed whatever jurisdictional and procedural distinctions might have existed for the purpose of applying the Seventh Amendment.


The holdings in Beacon Theatres, Inc. v. Westover and its progeny have altered radically the application of the historical test to declaratory judgment actions.  These cases make clear that it is the issue to be adjudicated not the underlying nature of the case, that is determinative of the right to jury trial.  As is discussed in next section, Supreme court decisions since 1959 have recognized that the Declaratory Judgment Act has expanded the situations in which a legal remedy may be sought and this necessarily has contracted the scope of' equity.  Thus, the Declaratory Judgments Act, like the Federal Rules, has enlarged significantly the range of issues for which there is a right to jury trial, with the utility of the law/equity dichotomy, embodied in the historical test, has been distinguished further.


Proper Seventh Amendment analysis requires application of a dynamic concept, one establishing a standard for jury trial rights that is not tied to the actual division between law and equity as it existed in 1791, but that evaluates the matters being litigated in terms of the way in which law and equity historically have interacted in defining the scope of jury trial.


11.5 Problems of Law and Equity in the Federal Courts-Modern Developments


The current interpretation is reflected in the Supreme Court decisions in Beacon Theatres v. Westover, "dynamic concept


This clearly chances the historic balance between law and equity.


In Beacon Theatres, Inc. v. leftover, plaintiff--Fox West Coast Theatres, Inc.--sought declaratory relief against Beacon Theatre alleging a controversy under the antitrust laws. Fox operated a movie theatre in San Bernardino, California, exhibiting films under contracts with movie distributors. These agreements granted Fox an exclusive right to show first-run motion pictures in the San Bernardino area, and provided for a “clearance”--a period of time during which no other theatre in the area could exhibit the same pictures. Defendant Beacon constructed a drive-in theatre about 11 miles from San Bernardino, and, according to the complaint, notified Fox that it considered the exclusive distribution contracts to be violative of the antitrust laws.  Fox instituted an action a California federal district seeking a declaration that the agreements were reasonable and did not violate the antitrust laws.


Defendant demanded a jury trial. The district court viewed the issues raised by Fox’s complaint as essentially equitable


Beacon then appealed to the Supreme Court, which reversed and ordered that prior to the trial of any equitable issues by the court, all factual issues raised by the legal aspects of the case must be tried to a jury. The decision represents a dramatic re-evaluation of the right to jury trial in the federal courts.


[need to include the beginning of this paragraph] Beacon Theatres expressly overruled this interpretation of the Seventh Amendment and held that no test utilizing traditional equity procedure could interfere with the right have a jury determine all the factual issues associated with a legal claim.


The analysis employed by the majority in Beacon focused on the extent to which procedural reforms, embodied in the Federal Rules and in the Declaratory Judgment Act, had shifted the traditional balance between the availability of equitable and legal relief.


The Court found that the Declaratory Judgment Act and the liberal joinder provisions of the Federal Rules offered an adequate remedy of law.


These two principles--(1) that the scope of equitable jurisdiction must be measured in light of the legal remedies and procedures currently available, and (2) that when an issue is common to both lethal and equitable claims in the same proceeding, it must be tried first to a jury--are the backbone of the Bacon Theatres decision.


Beacon Theatres…its philosophy regarding the dynamism of the Seventh Amendment was much more embracive, three years later in Dairy Queen, Inc. v. Wood.


…the language of an action for "debt" or “damages, Justice Black stated: But the constitutional right to trial by jury cannot be made to depend upon the choice of words used in the pleadings.


Accordingly, the Dairy Queen Court made clear that the right to jury trial exists as to any issue that is an element of a claim cognizable at law, even if the claim appears to be less significant than the equitable elements of the case. In addition, a determination of the “legal” nature of an issue must turn on an examination of the range of remedies that have been made available by procedural reforms since the ratification of the Seventh Amendment.


The question remained whether the right to jury trial extended to an action that could not have been brought historically at law, because it required the use of a procedure not recognized by the law Courts.  The Supreme Court answered this question affirmatively in Ross v. Bernhard.


It stressed the "dual nature” of the derivative suit and noted that two things were to be determined: first, plaintiffs' right to assert the claims of the corporation, and second, the merits of the claims asserted.  Although conceding that the question of the plaintiff’s standing to sue on behalf of the corporation was historically an equitable matter, the Court concluded that the underlying corporate claim might be either legal or equitable, and, if legal, the right to jury trial had to be preserved.  Moreover, in determining that the underlying corporate claim was legal, the Court adopted the principles established in Beacon Theatres--equitable jurisdiction no longer exist; when procedural reform has developed an adequate remedy at law."  It noted: “The historical rule preventing a court of law from entertaining a shareholder's suit on behalf of the corporation is obsolete. 


An important footnote stated: As our cases indicate, the "legal" nature of an issue is determined by considering, first the pre-merger custom with reference to such questions; seconds the remedy sought; and third, the practical abilities and limitations of juries * *


11. 6 Jury Trial in the Federal Courts-Statutory Causes of Action


In NLRB v. Jones and Laughlin Steel Corporation


Katchen v. Landy


The third case in this area is Atlas Roofing Company v. Occupational Safety & Health Review Commission.


Granfinanciera, S.A. v.  Nordberg


11.7 Jury Trial in State Courts-The New York Approach


11.8  Problems of Federalism




11.10 Selection and Composition of the Jury


In 1968, Congress implemented the Rabinowitz decision by revamping the statutory scheme governing the statutory scheme governing the selection and qualifications of jurors in the federal courts.  To introduce a degree of uniformity.  Juries were to be selected "at random from a fair cross-section of the community," to provide all citizens with the opportunity to be considered for jury service, and to prevent discrimination on the basis of “race, color, religion, sex, national origin, or economic status.   First, it required use of lists of registered voters as the source of jurors, and second, the use of objective criteria in determining juror qualifications, exemptions, excuses, and exclusions.


“excuse groups" must be excused upon request.  hardship in traveling' to doctors, ministers' sole proprietors of businesses, and individuals who can demonstrate “undue hardship or extreme inconvenience" may be excused.


The fourth category consists of those whom the court has the power exclude for partiality or because they are likely to be disruptive.


In order to select individual jurors a series of questions are posed to each prospective juror in a process called the voir dire examination, which is designed to expose a jurors lack of qualification or bias.  Various methods exist for conducting the examination; the trial judge may ask the basic questions, allowing the parties to ask supplementary questions, or the court may ask all the questions giving counsel the opportunity to request that certain inquiries be made, or the court may allow the parties’ attorneys to conduct the examination, reserving the right to ask additional questions.


Challenges to individual jurors are of two types: for cause and peremptory.


Failure to meet the statutory qualifications for jury duty, evidence of bias, and relationship to one of the litigants are all grounds for challenging, a potential juror for cause.  Challenges for cause are unlimited in number.  This differs from a peremptory challenge, by which a party may have a prospective juror removed without stating any reason.


11.11 Size of the Jury and the Requirement of Unanimity


In the 1970 case of Williams v. Florida, the Supreme Court held that a six-person jury in a state criminal proceeding satisfied the Sixth Amendment requirement of trial by jury,


The relevant inquiry, as we see it, must be the function that the particular feature performs and its relation to the purposes of the jury trial. Measured by this standard, the12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment.


Many state statutes or court rules also provide for a nonunanimous verdict in civil actions; typically, only nine or ten votes on a twelve person jury are necessary to reach a decision.