The law must be stable and yet it must not stand still. -- Roscoe Pound


PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

I. CHOOSING THE PROPER COURT
A. State Trial Court S/Matter Juris
1. Court of Common Pleas: 1 ea. county; GEN'L JURIS except <$500 or
exclus. J Ct of Claims
2. County Courts: portion of county not subject to a municipal ct.;
Exclusive juris <$500, concurrent juris w/ common pleas up to $3000
3. Municipal Ct: $0 to $10,000; only ct of LAW; case must arise in
that territory, D served there, or D resides there
4. Ct of Claims: exclus. civil actions v. State for at least $ damages; concurrent w/ C.Pleas for non-monetary relief or if pre-1975
State consented (ct claims established 1975)

B. Federal Trial Court S/Matter Juris
1. Federal Q Juris - civil claims arising under Constn, laws,
treaties of U.S.; Fed Q must appear on face well-pled Complt (genuine
fed Q not just anticipatd defense; defamtn)
2. Diversity Juris
a. Amt in Controversy Requirement:
-> Ea. P must EXCEED $50,000 for total ALL COA vs. ea./that D
(w/o interest & costs)
-> 6th caselaw 3 viewpts of case worth: (1) P's viewpt (2) either
party (3) party invoking Juris (removal)
-> EXCEPT: Ps or Ds common undivided int, lump as unit (co-Ds
common deed $50 total not each; partnrshp)
-> Pleader believed unless legally certain no way could make the
claim (pleader's favor really unless facially defectv) (tort claim can
"peek" at merits if convinced no way could make $50,000+)
b. Diversity of Citizenship: ALL Ps from ALL Ds; measured time
claim filed
(1) Indiv. resident "citizen" of state DOMICILED (the 1 state
where residence & intend to remain); U.S. citizen domiciled abroad OUT
OF LUCK
(2) Corp. each state inc. & 1 Prin. Place Bus. (where has bulk of
"brain" activities)
3. Removal Juris: state ct but could bring originally fed ct
a. if fed Q in state suit: can remove; fed ct can dismiss/remand
(1) under supplemental J, non-removable claims closely related to fed Q
or (2) under removal statute, separate & indep. state law dependent
claims
b. if diversity suit: removable only if ALL claims in case meet
diversity requirements & no D is citizen of State where action brought

C. Territorial Juris (in personam)
1. Presence in State
a. Physical Presence of Indiv.: mere phy. presence corp. agent not
enough over corp.
b. Physical Presence of 1's Propty: provides Juris for in rem suit;
non-in rem 1 contact in min. contact analysis
2. Citizenship: if "citizen" (domiciled) of state, s/to personal
Juris of that state
3. Consent to Juris: (a) express (b) Implied by non-contested
appearance; raising permissive claims; engaging in certain activities
implies consent to state Juris by statute
4. Minimum Contacts Territorial Juris
a. Constiutional Test MINIMUM CONTACTS
(1) Can't exer. pers. J unless consistnt w/ Due Process, but
states CAN LIMIT if want (docket )
(2) TEST FACTORS:
(a) Whether D purposefully availed himself of state such that
he could reas. anticipate being haled into court there
(b) Quality & Quantity D's contacts, ties & relations to State
(Are contacts Sufficient? Imprtant? Continuous?; might be enough alone)
(c) Extent to which COA arose out of or is related to D's
activities in the state
(d) Fair & orderly Administration of the laws (convenience of
ct & state's interest in case; won't DEFEAT Juris if a-c already met)
b. State Long-Arm Statute
(1) Unclear if intended to be more restv than Due Process/Minimum
Contacts based Juris
(2) Can reach outside borders to s/to State Juris if:
(a) transacting bus. in state (1 trans. not enough)
(b) K'g to supply goods/serv. in state
(c) act/omission in state caused tortious injury ANYWHERE
(d) act/omission outside state caused tortious injury in Ohio
if D (i) reg. does/solicits bus. here (ii) persistent course conduct
here, or (iii) derives substan'l revenue in Ohio
(e) if D sold goods outside Ohio, reas. expected would use in
Ohio, W breached & injury & D (i)-(iii) above
(f) interest in real property in state
(g) K'g to insure person/propty/risk in Ohio
(h) for "incidents" of marriage relationship had in Ohio, if
other party still resides here
(i) act outside state causing tortious injury in Ohio where
reas. expect person might be injured
(j) element of criminal act in Ohio that caused tortious injury
(3) If met Constn'l test, but not long-arm, might/might not allow
personal Juris

D. Venue and Change of Venue
1. Venue in State Courts of Ohio
a. Proper Venue in Ohio: 3-step Analysis:
(1) 9 areas county has venue: D's residence, D's Prin. Place
Bus., D acted to cause injury, Prin. office if D public off'r, Property
is for In Rem, All/part Claim arose, If long-arm P's residence, Co.
where Ex./Adm./Guardian/Trustee apptd, Divorce/Annulmt/ Legal Sep. co.
where P resident for at least 90 days prior
(2) If can't meet ANY of these, then where P's residence, prin.
place bus. or place reg. bus. activity
(3) If STILL can't meet, then co. where D has propty/debt owing
s/to attach or garnishmt or has statutory agent
-> "COUNTY" means all/part of co. the ct covers
b. If multiple Ds and/or Multiple claims venue good for ANY 1 PARTY
and ANY 1 CLAIM good for ENTIRE suit, even if later drops out/dismissed
(fed requires good venue for each party & claim)
c. If Multiple Venues Available some say P's choice; others
specific place controls over more general
d. Change of Venue in Ohio:
(1) D can file TIMELY object to venue, then ct MUST TRANSFER to
proper venue, w/ costs if PURPOSEFUL (fed can transfer OR dismiss)
(2) D defaults ct sua sponte can still transfer to proper venue;
D new 28 days to respond
(3) Even if venue proper ct can transfer to improper adjoining
co. if nec'y for fair/impartial trial
e. No Proper Forum IN Ohio:
(1) P given 60 days to file elsewhere w/ D waiving venue, pers.
Juris, Stat of Lim (or dismissed)
(2) If D won't agree & no proper venue elsewhere, Ohio WILL HEAR
IT
f. Forum Non Conveniens: s/matter, pers. & venue good here but
circum. warrant dismiss & file another st/country
g. Must file lis pendens notice for actions re: real propty in co.
where propty located
h. Attacking Venue: must do beginning of case; no interlocutory
appeal; can't collateral attack later in difft suit (as can s/matter or
pers. Juris)
2. Venue in Federal Courts
a. Venue lies:
FOR BOTH DIVERSITY & IF NOT SOLELY ON DIVERSITY:
(1) ANY judicial districts Ds "reside" IF THE DISTS IN SAME STATE
(D1 NDOhio & D2 SDOhio, either OK)
-> "reside" is domicile for person; anyplace s/to fed.
terr./pers. Juris for corp.
(2) Judicial Dists substant'l part events/omissions forming claim
occurred, or substant'l part propty s/of suit is located
(3) (a) For not solely diversity, if these don't work, any
judicial dist. where ANY 1 D can be found
(b) For solely diversity, judicial dist. where Ds s/to pers.
Juris at time action commenced
b. Change of Venue in Fed Cts:
(1) If venue proper, 1404 transfer, when in interests of
justice (FNC factors), to ct could have brought
(2) If improper, 1406 transfer where might have been brought or
dismiss
c. Forum Non Conveniens: When s/matter, terr. & venue proper, but
another clearly better forum has at least s/matter & has/or will waive
terr. & venue (usually foreign)

II. COMMENCEMENT OF AN ACTION
A. Initial Requirements
1. Filing + Serv. of Process (getting Pers. J) w/in 1 year
a. Can get Pers. J by service, D voluntarily appears, D waived in K
b. If get serv. post-1 yr some allow to proceed (if SofL hadn't run
by serv.); others say must refile
c. Rule must get in-state serv. w/in 6 mos.? If pursuing serv.
diligently get 1 yr; otherwise dismissed w/o prejudice to start over
2. Must file COMPLAINT b/4 COA has run
a. Running of SofL interrupted by:
(1) Conduct of D
(a) if case arose in Ohio, anytime D outside state for any
reason or absconded/concealed himself, THAT TIME DOESN'T COUNT
(b) BUT, if out for bus. reasons doesn't toll or if outside
simply b/c foreign corp.
(2) Disability of P (minority/mentally ill)
-> Doesn't start til disability lifted, or interrupted if
adjudicated or institutionalized
b. Savings Statute
(1) Applies suits in OH cts & fed ct suits s/to OH SofL
(2) Says if suit commenced/attempted to commence(serv.), then
dismissed/rev'd for technical reasons AFTER SofL run, can refile w/in 1
year

B. Service of Process
1. Methods for Service: cert. mail, personal & residence serv.
a. Certified Mail: most common; sent caption address unless
otherwise told, anyone postal regs allow to sign can, mailing noted on
docket & receipt/return envelope put in file, if doesn't work P atty
notified
b. Personal Serv.: written request to physically hand to D
c. Residence Serv.: written request to take & leave at residence w/
person suitable age/discretn living there
2. Persons Making Service:
a. Court official, person 18 or up not party & designated process
server ct order
b. Note in file & to P's atty if can't do in 28 days; valid even if
done after 28; poor file notes don't destroy valid serv.
3. In-State Service Can be Made On:
a. People: 16 or up not incompetent; under 16 or incompetent serv.
parent/guardian or person if none
b. Corptn: entity itself by cert. mail; offrs/directors; agent for
process
c. Govt entity: offr resp. for it or atty who defends it
4. Out-of-State Serv.:
a. Certified Mail: to last kn address; if fails serv. COMPLETED
when atty files affidavit re: lack address
b. Personal Serv.: permitted if ct by order OKs
5. Service by Publication
a. Due Process requires notice reas. calculated, under all the
circum., to inform D of nature/pendency of COA
b. Publication doesn't meet; last resort if nothing else
c. Can use service by publication when:
(1) Residence of D unkn after using reas. diligence (ck'd city
dir., credit bur., co. recds, neighbors) and statute for action allows
publication serv.
(a) Atty files affdvt; clerk publishes notice in paper gen'l
cir. (includes local ct news) in co. where suit filed, 1X week for 6
weeks, then serv. complete
(2) Forma Pauperis Divorce, Annulmt, Legal Separatn and D
residence unkn
(a) Atty files affdvt; clerk must post notice at cthouse & 2
public places for 6 weeks & send summons/complant ord. mail w/ forward
plea
d. When D's residence known, must use other forms of serv. first,
even though statute allows for publication serv.
6. Service of Process in Foreign Country
Can be done by: (a) same method as out-of-state (b) publicatn if
appropriate (c) by foreign law if reas. calculated to give notice (d)
manner stated in letter rogatory to country when asked for help (e)
indiv. personally (f) corp/partnershp/ass'n by delivery to offr,
managing/gen'l agent (g) any mailg required signed receipt (h) ct
ordered method
7. Amending Process: minor errors in process/proof of process can be
amended w/in ct discretion if no material prejudice
8. Service Refused/Unclaimed
a. If refuses serv. in any form, DON'T have to retry; can send ord.
mail & serv. complete when fact of mailing entered on docket (even if
returned undelivered)
b. If cert. mail unclaimed thru no fault of D, P told & DON'T have
to try other; can send ord. mail w/ rebuttable presumption good UNLESS
returned undelivered

III. PLEADINGS & MOTIONS
A. Types of Pleadings: complaint, answer, reply to ctrclaim, ans. to
cross-claim, 3P complaint, 3P answer (ALL OTHERS MOTIONS)
-> Usually claim, then response unless special motions

B. Mechanics of Pleading
1. Forming of Pleading: caption, #'d paragraphs, claims by count, 8
1/2 x 11, attached instrument if claim basis
2. Signature of Pleadings/Motions:
a. No verificatn required, but atty signature means read it; to
best of knowledge, info, belief goods grounds to support it; not
interposed for delay
b. Ohio on face less than federal Rule 11:
(1) Fed requires reas. inquiry b/4 well-grounded in fact & law;
Ohio doesn't
(2) Fed says not filed for ANY improper purpose; Ohio only that
not for delay
(3) Fed uses objtv reas. atty standard; Ohio looks to subjtv
state of mind & whether willful
-> But OH cases interpreting like Fed (reas. inquiry)
c. Ohio rule says atty s/to appropriate action for violation;
interpreted as rept to disciplinary body, but other cts say other
remedies too (costs, fees)
3. Time
a. Computation: (1) Date of act NOT included & last day INCLUDED
unless Sat., Sun., legal holiday; (2) normally count Sat/Sun/holiday in
days running UNLESS MUST DO IN < 7 DAYS; (3) office closed early you get
next day
b. Extensions of Time: (1) if wait til time ran must file motion &
show excusable neglect; (2) motion must be served 7 days b/4 heard (SJ &
Mot. New Trial 14 days) & opposing affdt 1 day b/4 heard; (3) NO time
extensions for Motion JNOV, New Trial, Seekg Relief from Judgmt
c. Addt'l Time w/ Mail Serv.: except complaint, served as of day
mailed; 3 days added to time to respond

C. Basic Framework of Pleadings
-> Pleadings should be simple, concise, direct; can plead hypos, in
the alternative or inconsistencies
1. Claims for Relief:
a. short plain statement of claim showing entitled to relief (to
give notice to D) [if don't, s/to 12b(6)]
b. If long-arm relied upon, state what part
c. State what relief you want (dec. Judgmt, spec. perf., $ amt
unless tort claimg over $25,000 then just that it exceeds $25)
-> DON'T NEED TO PLEAD S/MATTER JURIS (Fed you do)
2. Answer:
a. Includes affirm or deny, affmtv defenses, claims against others
b. DENIALS: must make diligent effort to respond; if can't, non-
positive denial form w/o info OK; admitted unless denied or inefftv
denial, EXCEPT DAMAGES
c. AFFIRMATIVE DEFENSES: even if admit complaint, I get to avoid
the consequences; must raise or waived. THEY ARE: accord & satis.,
arbitration & award, assumptn of risk, contrib. neglig., disch. in
bankruptcy, duress, estoppel, failure of consideratn, want of
consideratn for nego. instrumt, fraud, illegality, injury by fellow
servant, laches, license, paymt, release, res judicata, Stat of frauds,
stat of limtns, waiver
d. P doesn't respond to Answer; assumed denied
3. Presenting Defenses & Objections:
a. Must respond to claim for relief w/in 28 days after serv. unless
Rule 12 Motion, then 14 days after ruling
b. Can plead in Answer or Motion (1) s/matter Juris (2) personal
juris (3) improper venue (4) insufficiency of process (paper w/
complaint insufft) (5) insufficiency of serv. of process (6) failure
state claim upon which relief may be granted (7) failure to join party
under Compulsory or Permissive Joinder
-> If decide to use Motion, must assert any & all in 1 motion;
These must be heard b/4 trial if you ask
c. Motion for More Definite Statemt: claim insufft to answer; 14
days to correct
d. Motions to Strike: for n/a claims, defenses, redundant,
immaterial, scandalous
e. Waiver of Defenses & Objections
(1) Lack of pers. Juris, improper venue, insuff. process or
insuff. serv. of process WAIVED unless in preAnswer Motion or in Ans./or
permitted Amendmt
(2) Failure to state claim, Join an Indispensable Party, failure
to state legal defense to claim can be made pre-Answer, Answer, other
Response pleadg, Motion for J on pleadings or even at trial
(3) S/matter Jur NEVER waived; can raise 1st on appeal
4. Pleading Special Matters
a. Capacity to sue someone or be sued don't need to allege
b. Fraud or Mistake allegatins must state specific circum.
c. Intent'l tort claims require addt'l specificity
d. Condtns Precedent complied w/ can be pled generally
e. Time and place allegations considered material
f. Special damages (not nat. consequence of what you've pled) must
be specifically stated
5. Amendments
a. Amendments allowed:
(1) 1 as matter of course b/4 responsive pleadg filed (P gets 28
days to amend after D files answer)
(2) By written consent adverse party
(3) By leave of ct, freely given when justice requires
b. Amending Pleadings to Conform to Evidence: new issue at trial OK
if (1) no surprise, (2) parties agreed, (3) extension if surprise but
addresses merits & not prejudicial. Can amend pleadings to conform to
new issue IF WANT TO
c. Relation Back of Amendments (Stat of Limtns ran)
(1) Amend to change claim/defense relates back & so OK if arose
from same conduct/trans./occurrence did or tried to assert in original
pleading & SAME PARTIES
(2) Amend to change party claim against must arise from same
trans./occurrence AND w/in original SofL absent party knew of action &
knew/should have but for mistake would be in the case
(3) Amend to replace name of a "John Doe" unkn party OK where
said in claim couldn't discover name, reas. desc. given, summons said
name unkn, serv. w/in 1 yr Complt (some don't allow Doe for multiple
mfrs)

D. Complex Litigation - PARTIES
1. Real Party in Interest: 1 who benefits/injured by Judgment unless
in proper reptv capacity
2. Permissive Joinder of Parties (Rule 20) (bunches of Ps/Ds)
a. Ps can join in 1 action if assert any rt to relief from, or Ds
can be joined in 1 action if asserted against them rt to relief arising
out of: the same trans./occurrence or succession/series of trans./
occurrences AND they have Q of law or fact in common
-> (2 AAs 6 mos. apart; both Ds named)
3. Necessary & Indispensable Parties (Rule 19)
a. Must join as a party, if feasible, when:
(1) complete relief can't be granted in their absence
(2) their absence would impair or impede their ability to protect
their interests
(3) someone already a party would be s/to substant'l risk of
multiple obligations if not joined or
(4) Assignor/assignee or Subrogor/Subrogee relationshp
-> Affirmtv defense that's waived if not raised; if join may push
$ up to next ct
b. If 1 of these exists BUT NOT FEASIBLE to join:
Ct must decide if fairer to go forward (dispensable) or dismiss
(indispensable). SOME CONSIDERATIONS:
(1) Extent J in absence might prejudice person or current parties
(2) Extent that protectv provisions in J can lessen, waive or
avoid the prejudice
(3) Whether J in person's absence will be adequate
(4) Whether P will have adequate remedy if dismissed for non-
joinder
4. Compulsory Joinder (Rule 19.1) (Ohio only)
-> Person not w/in 19 but close connection to case; case CAN'T be
dismissed if can't bring them in but will insist you do if can *Unless
good cause shown (minor)
-> Must raise as 12b defense or lose it
Governs: (a) suits for decedent claims & wrongful death (b) spouse's
damages from act to other spouse (c) damages to minor & claim by
parent/guardian (d) damages to e/ee & e/er PD claim
-> Court can raise joinder problems on its own; if misjoined claim
simply severed & case continues
(ANALYSIS: Is the Party any (a)-(d) of COMPULSORY JOINDER? If yes,
STOP. If no: Are they NECESSARY OR INDISPENSABLE? If yes, are they
NECESSARY ONLY or INDISPENSABLE? Necessary only, proceed.
Indispensable, STOP. If not necessary or indispensable, ARE THEY A
PROPER PARTY TO PERMISSIVELY JOIN? If yes, OK; If no, they're OUT)
5. Interpleader:
a. OHIO (rule interpleader) holds property s/to competing claims;
can sue on own or raise by Counterclaim after 1 of the 2 files
b. FED (rule interpleader) & statutory interpleader which requires
deposit of stakehold, easier to enjoin other pending actions, only $500
for diversity, diversity required for claimants to stake & only minimal
(just can't ALL be from same place)
6. Class Actions
a. Minimum Requirements ALL cases:
(1) so numerous joinder all impracticable (25-40+)
(2) common Qs law or fact to class
(3) reps claims/defenses typical of class
(4) rep will fairly & adequately protect class ints
-> Atty can't also be member of class
b. Then at least 1 of these:
(1) indiv. suits could have inconsistent results establishing
inconsistent conduct standards for D
(2) indiv. suits would dispose of others' interests or impede
ability to protect their interests ($ low)
(3) D acted on grounds applicable to class, making final
injtv/declar. relief appriate for whole class
(4) Ct finds Qs law or fact common to members predominate & class
action superior way to handle (consider member int. in indiv. control,
claims already going, pros/cons of 1 forum, class mangemt difficulties)
(MASS TORTS, SINGLE INCIDENTS)
-> Here, must give best notice practicable under circum. w/
oppty to OPT OUT
c. Ct should decide if class ASAP; can be just for issues or
damages; or set up subclass w/in class; class certn final appealable
order; claims aggregated for Juris $ d. Can't dismiss/compromise w/o ct approval after NOTICE TO ALL
MEMBERS AS CT DIRECTS (for all types)
e. Shareholder Derivative Actions (form of class action)
-> (1) VERIFIED complaint; (2) made demand on corp. to act; (3)
s/holdr at time of events; (4) rep. will fairly & adequately rep.; (5)
Dismiss/Compromise only upon Notice & court approval
7. Substitution of Parties
a. Death or Incompetency of Party: (If action survives) Atty
SUGGESTS on record w/in 14 days of knowledge & then 90 days to
substitute or dismissed w/o prejudice
b. Death or Change of Public Officer: Automatic substn when suit
against the "office"

E. Complex Litigation - REMEDIES
1. Seizure of Persons or Property: to secure a judgment yet to be
entered, might allow seizure first & hearing after (interests balanced
to determine if appropriate)
2. Injunctions: temp. restraing order; preliminary & permanent
a. TRO: ex parte where emergency w/ irreparable threat of injury &
can't give notice to D
-> File VERIFIED complaint detailing threat & notice attempts; If
granted Ct makes findings & what's restrained; DISFAVORED; good 14 days
w/ 1 same extension; top calendar priority; D can seek
modiftn/dissolution
b. Preliminary: to preserve status quo pending resolutn
-> D gets notice; hearing where ct weighs P's likelihood of
success on merits & comparativ harm to P, D and public
-> If granted, ct makes specific findings & what's restrained
-> BOTH OF THESE PARTY SEEKING ORDER MUST POST SECURITY

F. Complex Litigation - CLAIMS OF OTHER PARTIES
1. Compulsory Counterclaims
If claim currently mature at time pleadg responded to, arises out of
trans/occurrence of other party's claim, and doesn't require joinder of
someone who can't be joined MUST RAISE OR CLAIM IS WAIVED
2. Permissive Counterclaims
CAN BRING: ANY claim against opposing party, later matured
counterclaim, or same trans./occurrence but not compulsory (e.g. case
already pending elsewhere)
-> If inadvertently forget by excusable neglect to include, can move
to amend to include
3. Cross-Claims (NOTE: C-C is co-parties & haven't yet filed claim
against you; if had yours would be counterclaim)
a. Can only be asserted by 1 whose had a claim asserted against
them (2 Ps can't C-C unless D would counterclaim them); must be
transactionally related to suit (indemnificatn OK)
b. Always permissive; D didn't choose forum & not an initial
claimant so can't clutter w/ unrelated matters
c. Once have a valid Cross-Claim, under Joinder of Claims rule,
that party can add in ANY OTHER EVEN TOTALLY UNRELATED CLAIMS as wants
to
-> Joinder Rules apply to Counterclaims & Cross-Claims
-> If $ up can certify up or separate trials if too complex

G. Complex Litigation - CLAIMS OF 3rd PARTIES
1. Impleader: ANYONE w/ claim against them who thinks non-party out
there who is or may be liable for all or part of claim
(indem./subrog./contrib.) files 3P Complaint
a. 3P D is just like another other D
b. Can raise any defenses original 3P P had against person bringing
claim against them (b/c derivative liability)
c. Can raise trans. related claims against other parties
d. Under Joinder Rules, once have 3P claim, can raise ANY other
claims you want to
e. B/C of potential complexity, any party can move to strike 3P
claim or sever or separate AND P has absolute rt to separate trial if 3P
D is e/ee of 3P P
2. Intervention
a. Regardless if statutory or non-statutory interventn of rt, or
permissive interventn, request must be TIMELY (how long knew of case &
impact on parties)
b. Intervention of Right: have interest relating to property/trans.
that's s/of action & so situated that if suit proceeds, your interest
impaired or impeded
-> No other parties adequately represent your interest b/c
divergent & not just difference in litigation strategy
-> Possibility inconsistent verdict or double exposure
c. Permissive Intervention: when claims have Q of law or fact in
common, or agency/offr seeks where law it administers is s/of the action
-> DISCRETIONARY; will it unduly delay proceedings or prejudice
rights of original parties?

H. Complex Litigation - THE COURT
-> Broad discretion of complex cases to order separate trials of
claims/issues to further convenience or avoid prejudice

IV. DISCOVERY (free/open exchange policy; self-executing)
A. Limitations on Scope of Discovery
1. Privileged Information
2. Work Product Doctrine
a. Protects documents & things prepared in anticipation of
litigation UNLESS good cause shown or own W statement (not entitled to
atty's mental impressions either)
b. Doesn't protect core FACTS (facts learned from W statemts or
eyewitnesses ID'd to accident)
3. Expert Witnesses
a. Outside experts retained or specially employed in anticipation
of litigation:
(1) Can discover facts known or opinions held by such expert upon
showing undue hardship or exceptional circum. (only expert in area or
item destroyed)
b. For experts who are not retained or specially employed in
anticipation of litigation:
(1) Experts actors or views in basic dispute; ord. Ws
(2) Experts informally consulted (not hired); immune
(3) E/ees assigned to do expert work; split on whether covered by
rule or just work product doctrine
c. For experts testifying at trial:
(1) Can discover by interr. ID of expert, s/matter of testimony
(2) Can then discover facts kn & opinions held relevant to
s/matter & previously given to atty or to be given on direct exam (so
can prepare cross)
(3) might also have to pay expert fee to respond
4. Protective Orders: vexing, harassing conduct or privileged
5. No duty to supplement if complete when made unless incorrect,
requested to do so or unless W names/addresses

B. Depositions (only disc. device against non-parties)
1. Types: (a) petition to perpetuate testimony (depo pre-filing); (b)
depo on written Qs; (c) depo on oral exam
2. If corp./entity can describe what you need & ask them to designate
the proper person
3. Depos and Objections: if could be cured in depo (compound Q) must
raise or waived; if couldn't be cured in depo can object anytime (not
just depo); answer unless so out of line need recess or protectv order

C. Interrogatories (written Qs)
1. Only thing prohibited is pure Q of law (define neglig); can ask
facts, conclusion, opinions, applicatn of law to facts
2. Ltd to 40 (including subparts) unless show good cause
3. Business records: if = ascertainable for both, can just allow them
access

D. Productn of Documts (from party; non use subpoena duces tecum)
1. Must ID documents w/ reas. particularity materials in other
party's poss'n, custody, or control (& they must get it)

E. Mental/Physical Exam (requires ct approval; not self-executing)
1. Court will order if condition in controversy (relevant) & good
cause shown (exam appropriate & don't already have access to the info)
2. Applies to party or 1 in party's control
3. Ohio waives dr-pt privilege any civil action where physical condtn
in controversy
4. 1 examined entitled to rept; if ask, waive dr-pt privilege of any
other recds as to condition

F. Admissions (if ignore it's admitted)
1. Admit truth of facts, opinions, applic. of law to facts,
genuineness of documents; must admit or deny or state grounds of insufft
info to admit/deny
2. Ct allows w/draw or amendmt of admission if no prejudice & other
party hasn't already relied on it
3. If unjustifiably fails to admit & proved at trial can assess the
costs in proving

G. Sanctions
1. If completely unresponsive seek can IMMEDIATE sanctions
2. If incomplete file motion to compel w/ costs if appropriate; if
that's ignored can then seek sanctions (contempt, fine, dismissal)

H. Use of Discovery at Trial
1. Interr. can be used to impeach if now give difft answer
2. Admissions are BINDING; jury told as established facts
3. Depos of ADVERSE PARTY can be used any purpose (impeach or
direct); of OTHERS can be used to impeach or direct if former testimony
exception or dr. testifying
-> FAIR USE CONCEPT: when 1 uses depo portion, other has ABSOLUTE
rt to put the material in context

V. PRE-TRIAL PROCEDURE (ct rules to manage pre-trial process)
1. To (a) encourage settlement, (b) simplify issues for trial by
exchange of info, damages, expert/med reports, admissions, experts at
trial, genuineness of exhibits, etc. and (c) coming up with pre-trial
order to govern trial; modified only to prevent manifest injustice

VI. ADJUDICATION W/O TRIAL
A. Default Judgment (last summer)
1. Pure Default Judgment (no response)
Notice REQUIRED if D has appeared (filed ans. late), otherwise
OPTIONAL; Even though complt allegtns deemed admitted, ct discretion to
hold 1 if wants & MUST hold if needed to set damages
2. Opponent Partially Participates (drops out)
Must prove case via ex parte trial b/4 judge
3. Unrepresented minors/incompetents or state cannot default
4. D.J. can be set aside on Motion for Relief from Judgment

B. Dismissal of Actions (summer 1989)
1. Voluntary Dismissals (dismissed not on merits; w/o prej. and not
res judicata)
a. P can file notice/dismissal b/4 trial commences (EXCEPT class
actions or receivership) (usually w/o prejudice unless D has
counterclaim or P did this b/4)
b. Stipulation of all parties (must state w/ prejudice if want
that; usually b/c settled)
c. Order of the Court (when P can't dismiss voluntarily b/c maybe
Counterclaim; w/o prejudice unless otherwise)
2. Involuntary Dismissals
a. Penalty Dismissals: to comply w/ rules or prosecute; NOTICE
REQUIRED; w/ prej.
b. Others also w/prejudice unless otherwise noted (12b6)
c. Some invol. not on merits so w/o prejudice: savings statute,
lack of pers. or s/matter juris, failure to join party, lack of venue,
failure to sub. decedent, failed to make 6 mo. in-state serv.
C. Summary Judgment (winter 1991)
1. No genuine issue material fact for factfinder & entitled to SJ as
matter of law; reas. minds can come to only 1 conclusion; motion viewed
in light most favorable to non-moving party; can be for some or all
issues of case
2. Procedure for SJ
a. Timing: D can seek ANYTIME; P after responsive pleading time
passed; ct appr'l required if trial/pre-trial set
b. Proof Considered: Pleadings, depos, ans. to inter., admissions,
affdvts, transcripts, stips of facts
c. Using Affidavits: on pers. knowledge, facts/opinions admissible
in evidence, affiant competent to testify
d. Burden of Proof: Movant shows on his evidence no genuine issue;
opponent pts to other info making genuine issue or that premature to
decide

VII. TRIAL
A. Non-Jury Trial: D can move to dismiss close P's case & ct can grant
or deny; no requirement ct do findings & conclusions unless party files
timely request (appeal time tolled til done)

B. Trial by Jury
1. Right to Trial by Jury
a. (1) For legal actions recognized at common law; (2) purely
equitable no rt to jury trial; (3) Combined legal & equitable case, if
incidental to each other look at which claim predominates & if not
incidental ct separates (4) Statutory COA jury trial if expressly stated
& some say if ONLY legal relief provided (5) Declar. J or Class Actns rt
judged by underlying claim
b. Punies: tradt'ly jury Q; tort reform says jury decides if given
& judge sets $ c. Jury Demand: by any party in caption or separate motion NO LATER
THAN 14 DAYS AFTER SERV. OF LAST PLEADING ON THAT ISSUE (later motion
may be granted)
d. Maximum jury is 8; can ask for less
e. Jury Demand Granted, Unless:
(1) by written or open ct oral stip. parties w/draw it
(2) not rt kind of case for jury trial
(3) Party demandg didn't answer/appear for trial
f. Advisory Jury: if judge wants; not binding
g. Trial by Consent: if parties agree & ct wants it, even though no
right to jury trial in the case
2. Jury Selection
a. Voir Dire: Q/A for info; by parties or if by ct must allow attys
to supplement the Qs (not in fed ct)
b. Challenges to Jurors: (1) "For Cause": unltd for (a) special
relatnshp to parties/counsel (b) fairness (c) unqualified; (2)
"Preemptory": 3 ea. side for any reason except racial discrim.
-> Exercised by cause until required #; then use pre-empts by
rotation (don't on your turn it's waived); done when all pre-empts used
or P&D both waive
c. Alternate Jurors: discretionary up to 4; substituted in order
for regular juror; can sub up to deliberations
3. Instructions to Jury
a. Party can file proposed at evid. close or when ct directs; ct
must tell attys ruling b/4 closing; instns given after closings
b. MUST object to instns after jury charged & b/4 retire EXCEPT if
instn PLAIN ERROR (clear & had signif. impact on outcome) can raise on
appeal though didn't object
4. Verdict: doesn't have to be unanimous (3/4) unless less than 4
jurors
a. Post-Verdict: Read by judge, asks jurors as group if their
verdict, polls indiv. if party requests
b. Verdict Defects: If defective in substance or assent (# of
jurors not enough) mistrial or sent back to correct; if defectv in form,
ct can correct w/ juror assent
c. Form of Verdict: every case get gen'l verdict (who won & what
relief) AND special inter. MUST accompany gen'l verdict if (1) any party
requests (2) b/4 closing (3) and deal w/ determinatv issues (ct discretn
on Q form)
-> If gen'l verdict & special interr. don't match, ct can (1)
follow answers (2) return to deliberate (3) order new trial

C. Entry of Judgment
1. Judgment is any order from which an appeal lies
a. Usually end of case but ct can enter final J as to discrete
claims w/in a multiple claims case
2. Grant of Motion for New Trial or Motion to Reopen Judgment are
treated as appealable Js in Ohio (not fed)
3. Demand for Judgment
a. If D.J. only get relief prayed for (D w/o notice)
b. If not D.J. ct can give any relief appropriate though not
requested EXCEPT if $ max. you demanded (not fed) so can amend as matter
of rt up to 7 days b/4 trial & after is discretionary
c. Costs usually pd to prevailing party
4. Entry of Judgment
a. Judgments must be in writing, signed by Judge and entered upon
the journal (THEN journal date efftv for appeal)
b. Notice of entry served on parties usually by sending to atty
(mail, fax, delivery); THEN COMPLETE even if atty doesn't get the actual
notice

VIII. POST-TRIAL MOTIONS
A. Directed Verdicts & Judgments Notwithstanding the Verdict
1. Apply in jury trials & judge b/c extraord. circum. decides instead
of jury; strict standard; DV made b/4 jury deliberates; JNOV after jury
returns (hung jury or verdict)
2. Directed Verdicts
a. Can be made (1) on opponent's opening statemt (2) close of
opponent evid. (3) close all evid.
b. Judge construes all evidence most favorable to non-movg party
(all credibility stuff & inferences)
c. If only 1 verdict reas. minds could reach, then only possible
verdict as matter of law
d. Similar to S.J. EXCEPT S.J. usually made b/4 trial based on
documentary evid. & D.V. at trial baed on admitted evid. (both ask
whether evid. so 1-sided party must prevail as matter of law)
3. Judgment Notwithstanding the Verdict
(Fed only if asked D.V. at close of all evidence; not OH)
a. Make w/in 14 days Entry of Judgmt or jury discharged
b. Same standard as D.V. (b&c above)
c. Ct can deny/grant Motion OR ORDER NEW TRIAL EVEN IF NOT
REQUESTED (if not enough for D.V. but new trial approp)
-> Ct required to justify in writing, w/ Entry of Judgment basis for
granting D.V. or JNOV
d. JNOV & MOTION FOR NEW TRIAL
(1) Filed together a lot; find in my favor, but if not at least
give me new trial; ct rules on both
(2) So if granting JNOV, makes condtn'l ruling on Motion for New
Trial
(3) If grant of JNOV rev'd/vacated by app. ct:
(a) any motion for New Trial condtnlly granted proceeds
(b) any motion for New Trial condtnlly denied can be argued on
appeal
e. If JNOV denied by trial ct, if app. ct reverses party who lost
his verdict can argue on appeal grounds why should get New Trial

B. Motion for New Trial
1. Procedures & Timing: By motion or ct sua sponte; must serv. motion
for new trial w/in 14 days after entry of judgment or court must order
w/in 14 days (supptg affdvts filed w/ motion & opponent 14 days to serv.
opposing affvts)
2. Grounds for Granting:
a. Irregularity in proceeding causing unfair trial (ans. jury Q
outside counsel)
b. Misconduct of jury or prevailing party (quotient $)
c. Accident/Surprise Ord. Prudence Couldn't Guard Against
d. Excessive/Inadequte Damages from Passion/Prejudice
e. Recovery Amt Error when K action or Property injury
f. Judgment not sustained by manifest weight of evidence
(1) Comparison with DV & JNOV:
(a) For DV/JNOV & New Trial both determine whether verdict
justified, BUT
(b) DV/JNOV: could reas. minds differ as to outcome
-> all presumptns by judge in favor non-movg party
(c) MOTION NEW TRIAL B/C J AGAINST MANIFEST WT OF EVID: judge
doesn't care if sufft evid. that reas. minds could differ; instead
whether enough evid. that decision reached wasn't against the manifest
wt of evid., by INDEPENDENTLY WEIGHG EVID., ISSUES OF CREDIBILITY,
INFERENCES (clear, firm conviction jury decision wrong)
g. Judgment is Contrary to Law
h. Newly discovered material evidence that w/ reas. diligence
couldn't be discovered & produced at trial
-> only if in existence at time of trial
i. Error of law occurring at trial brought to trial ct's attn by
movant (judge changes mind)
j. Any good cause shown in sound discretion of court
3. If motion timely ct doesn't have to use grounds you raised! But
must notify other side; written grounds if grant
a. Non-jury trial just reopen to resolve; jury start over

C. Relief from Judgment or Order (summer '91 w/ default rule)
1. Clerical Mistakes: ct can correct
2. VOIDABLE Judgments: ct had authority to make J (s/matter & terr.
juris) but J should be reopened b/c certain circum.
a. Must move w/in reas. time, not exceeding 1 year if
mistake/excus. neglect, new evid. or fraud
b. Grounds to Reopen Judgment:
(1) mistake, inadvertence, surprise, excusable neglect
-> D didn't get serv. thru no fault of own
(2) newly disc. evid. that by due diligence couldn't be
discovered in time to move for new trial
(3) fraud, misreptn, other misconduct of adverse party
-> Put on perjured testimony
(4) J's been satisfied, released or discharged; prior J on which
J based rev'd/vacated (ct denied you oppty to argue something based on
res judicata or collateral estoppel of another action & J in other
action rev'd); or no longer equitable that J have prospective
application (but change in circum. making no longer equitable must have
been unforeseeable at time J granted; e.g. injunctions)
(5) Any other reason justifying relief from the J
-> 3P bribed judge
c. Must also show if ct did reopen, you have meritorious
claim/defense so case might be resolved difftly
d. NOT AN APPEAL SUBSTITUTE (same evid. from trial record but
missed time to appeal)

IX. RES JUDICATA/COLLATERAL ESTOPPEL
A. Res Judicata (claim preclusion)
If valid final J on merits in 1st case, can't relitigate same claim
bet. same parties or their privies
1. What's a Claim?
a. Modern Test "Transactional": every theory arising out of that
trans. must be sued for at 1 time
b. Ohio (more narrow): Just b/c new claim arises out of same
s/matter or incident insufft; are the facts nec'y to sustain your claim
the same in 1st action as in 2nd?
(if so, same claim; if not, not res judicata)

B. Collateral Estoppel (issue preclusion) (summer 1988)
1. An issue of fact or law actually litigated in 1st case &
determined by final valid J & the determination was essential to the J
2. Determination binding if 2nd case same parties or privies and had
a full & fair oppty to litigate in 1st case
3. -> Is same issued involved?
-> Was it actually litigated (fought & contested)?
-> Was the issue specifically determined in 1st suit (vs. gen'l
verdict)?
-> Was it essential to the J? (2 views: NECESSARY for 1st result to
be what it was/ just SUPPORTIVE OF is OK)
4. Same Parties or Privies in OHIO means Mutuality: person asserting
collateral estoppel must show that had the verdict on the issue gone the
other way, issue preclusion could have been used against him (J or
ruling could have been enforced against him)
-> EXCEPTION: Employer/employee cases; if P sues e/er & loses on
e/ee's neglig. then sues e/ee, e/ee can use collateral estoppel (no
mutuality b/c if P had won 1st case, wouldn't be able to enforce J
against e/ee)
5. Did Party have full & fair OPPTY to litigate the issue in 1st
case? (was there incentive, was future litigatn foreseeable, peculiar
diff. in 1st case like ltd disc., was 1st result from runaway jury)

X. FEDERAL CHOICE OF LAW IN DIVERSITY CASES
A. Substantive Law: apply state's whether statute or Ohio S.Ct. caselaw
(Erie); lower state opinions persuasive only

B. Procedural Qs
1. If fed/state procedure standard directly conflicts, fed standard
used if (a) fed rule of civil procedure (b) fed statute (c) command of
U.S. Constn
2. If judge-made standard (commentg on evid) fed still applies unless
some good reason to apply state standard like,
a. state standard integral part of state substv law OR
b. fed/state difference in standards made real difference to the
parties (likely to change result)
unless there are countervailing federal considerations (REAL impt to
fed ct in how it carries on its business & would undermine essential
characteristics of fed system)

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