Deck 12: Post-Trial Practice From Motions to Appeal

Question 1

Identify and describe the common procedures for enforcing a judgment.

Answer 1

If the letters fail, procedures used to enforce a judgment include execution, garnishment, and domestication of a judgment. None of these actions may be taken, however, as long as any stay has been granted by the court on the execution of the judgment. Under Federal Rule 62 and parallel state rules, an automatic stay is imposed for the first ten days after judgment, and the court may grant longer stays in its discretion, including a stay pending the outcome of an appeal.

Question 2

Research the rules of procedure and law in your jurisdiction on the availability of formal supplementary proceedings for locating a judgment debtor's assets. Check the U.S. Code as well for any such procedures. Then list the procedures and applicable rules and statutes in your systems folder. Place a copy of or a page reference to the Notice of Lis Pendens and the Interrogatories in Aid of Judgment in your systems folder.

Answer 2

Rules 64 and 69 of the Federal Rules of Civil Procedure require the U.S. district courts to employ the supplementary proceedings permitted by the state in which the district court is located. Where there are applicable federal rules or statutes, however, the district courts must apply these rules or statutes. Some of the relevant federal laws and commentary follow.

Question 3

List the various ways you can assist in the appeals process.

Answer 3

The experienced paralegal can assume the role of appeals manager. To prepare for this role, study the appellate rules meticulously and record all deadlines, formats, and procedures. If you have questions, ask the appropriate clerk of court. An appeal program sheet should be kept for each case. Overall management can be achieved by using a master sheet with all pending appellate cases and points of progress for each case. Regular calendared reviews by all involved paralegals and attorneys can result in thorough and effective appellate management. With a little experience, the task will be easier and your benefit to the firm enhanced. Knowing and understanding appellate deadlines and timeframes cannot be overstated. The paralegal is frequently assigned to research potential theories for the appeal, locate authority in support of the theory, and verify the accuracy of all citations used by all parties in their briefs and oral arguments. You can frequently turn up misuse of authority by checking whether the authority cited actually stands for the principle of law being asserted, and whether the facts are as presented. Before the record is sent to the appellate court, review it to verify that the reporter has accurately portrayed what happened at the trial.

Question 4

What is the bill of costs? What should you include when preparing a bill of costs? What form is used for a bill of costs?

Question 5

Place a page reference or copy of the Checklist for Federal Appellate Procedure (Appellant) in your systems folder. Research appellate procedure for your state and make a separate state appellate checklist for your systems folder. Verify appellate time requirements in the Motions, Pleadings, and Time Limits exhibit and add state time limits. Additionally, place page references or a copy of the skeletal appellate brief in your systems folder. Enter applicable rule references. Research the format of an appellate brief for your state. Include a copy in your systems folder plus references to rules on the required format.

Question 6

Research your state law to determine what assets of a judgment debtor are exempt from execution on the judgment. List these in your systems folder.

Question 7

To what law does a judgment creditor in federal court look to enforce a federal judgment? A state judgment in state court?

Question 8

Rule 59 requires that a motion for a new trial must be filed within how many days of the entry of judgment? What is the rule in your state?

Question 9

What are the various types of property subject to execution? What is exempt in your state?

Question 10

Make an outline of the procedure for domesticating a judgment in another state and in federal court.
Place the outline in your systems folder.

Question 11

What are the formal methods that can be used by a judgment creditor to determine the assets of the judgment debtor?

Question 12

What is the step-by-step process for executing on property in your state?

Question 13

What are the key components of an appellate brief?

Question 14

What are the key components of an oral argument notebook?

Question 15

Describe the key steps and time limits in the federal appellate process and in your state's appellate process.

Question 16

What procedure is followed to have a judgment rendered in one federal jurisdiction honored in another federal jurisdiction?

Question 17

Draft a step-by-step checklist for enforcing a judgment in your state. Place the checklist and any pertinent forms in your systems folder.

Question 18

What are the two most common motions to have the judgment set aside? What are they called in your state practice? Define each of these motions.

Question 19

What is a lis pendens?

Question 20

What is a prejudgment remedy?

Question 21

Complete your litigation systems folder, update its table of contents, and prepare it for grading.

Question 22

What does it mean to be judgment proof?

Question 23

When must a notice of appeal be filed under your state's rule of appellate procedure? Can this time be extended by the court?

Question 24

Identify the different standards of review and how they are applied.

Question 25

Check the law library or Internet for form and procedure books on enforcement of judgments or collections for your state. Draft a step-by-step checklist for enforcing a judgment in your state. Place the checklist and any pertinent forms in your systems folder.

Question 26

Research the forms and procedures for garnishment in your state. Make a checklist and place it and copies of or references to the appropriate forms in your systems folder.

Question 27

Place a page reference to or a copy of the Bill of Costs in your systems folder. If your state has a similar form, include it. Note the applicable state and federal rules.

Question 28

Describe the steps in domesticating a judgment.

Question 29

What role can you play in post-trial motion practice?

Question 30

Place page references or a copy of the skeletal appellate brief in your systems folder. Enter applicable rule references. Research the format of an appellate brief for your state. Include a copy in your systems folder plus references to rules on the required format.

Question 31

On what basis may a judgment debtor challenge an attempt to enforce a domesticated judgment?

Question 32

Enter the ten-day time limit for filing post-trial motions in the Motions, Pleadings, and Time Limits exhibit in Chapter 6. Place copies of or page references to the motions in your systems folder, both in a post-trial motion section and in your motion practice section. Indicate what federal and state rules govern the motions.

Question 33

If a defendant has moved for a judgment as a matter of law (directed verdict) based on the weight of the evidence and the motion was denied, what motion may the defendant file after the trial if the defendant believes the jury's verdict is against the weight of the evidence? What motion should be filed if the defendant believes a serious procedural error was committed by the judge? What state rules govern these motions?

Question 34

Assume that you represent a judgment debtor who has recently paid off a judgment. Under your state law, what procedure must one follow to record a release of judgment?

Question 35

Assume for purposes of this assignment that, contrary to the weight of the evidence, the jury returned a verdict against Mrs. Forrester. The areas that you believe the jury ignored are a) that Hart was looking at the van radio just prior to the accident; b) that several of Mercury Parcel's documents showed the van had faulty brakes; and c) that defendants offered no evidence whatsoever that Mrs. Forrester was careless or contributed in any way to the accident. Using your state form, draft a motion (no supporting affidavit or memorandum) for judgment notwithstanding the verdict.

Question 36

Assume that your client has a judgment for $250,000 against X, who lives in your state. You know that X has $100,000 in liability insurance, a $100,000 home and land, a small cottage worth $60,000 (but only $15,000 paid for), two vehicles each worth $10,000 (both paid for), a boat worth $7,000, and an online coffee business that generates $30,000 in gross annual income. Under your state statutes, what of X's assets are not exempt from execution on the judgment?

Question 37

Mercury Parcel has had a judgment entered against it for negligence against Mrs. Forrester.
(a) Identify and prepare the motion(s) that Mercury Parcel can assert prior to filing a notice of appeal.
(b) Assume that Mercury’s motion(s) have been denied by the trial court judge, and prepare the notice of appeal in accordance with the rules in your jurisdiction.
(c) Outline the components and requirements of an appellant’s brief following your jurisdiction’s rules of appellate procedure. Include in your outline such information as page limits, font size, margins, and any other requirements for filing a brief.

Question 38

What is a judgment debtor? A judgment creditor?

Question 39

Compare and contrast your federal circuit court of appeals brief requirements with your state's appellate rules for briefs. Prepare a list of the differences and similarities for your systems folder. Note that some courts may have local rules that supplement these rules. Be sure to include any local rule requirements in your analysis.

Question 40

What is a motion for remittitur? A motion for additur?

Question 41

Up to 25 percent of disposable earnings can be garnished.

Question 42

Under your state court rules of civil procedure, when can a party file a bill of costs? What must be asserted and shown?

Question 43

Motions to have a judgment set aside must be filed right after the verdict is read.

Question 44

Go to the U.S. Supreme Court site, and choose a recently decided case from either the current term or last year's term. Outline the sections of the brief and identify the issues in the case. Who are the appellants/petitioners, and who are the appellees/respondents in the case chosen?

Question 45

Prejudgment remedies are less popular than they used to be.

Question 46

Unpublished opinions issued after January 1, 2007, may be cited in federal appeals.

Question 47

Motions for judgment as a matter of law and for a new trial must be renewed to preserve the issue for appeal.

Question 48

Go to HYPERLINK "http://www.ca6.uscourts.gov/" www.ca6.uscourts.gov. What types of information does this site have or link to that would help you if you had an appellate case in the 6th Circuit?

Question 49

Who may file a motion for JNOV under Rule 50?

A) The loser of the case
B) The defendant when there were procedural errors
C) The party who has a cause of action
D) The party who has moved for a directed verdict

Question 50

Assume for purposes of this assignment that, contrary to the weight of the evidence, the jury returned a verdict against Sean Coleman. The areas that you believe the jury ignored are (a) that the design of the motorbike was faulty, and (b) that defendants offered no evidence whatsoever that Mr. Coleman was careless or contributed in any way to the accident. Using your state form, prepare the appropriate motion(s) to the trial court.

Question 51

Payment of the judgment amount is due within 10 days of the verdict.

Question 52

Appeal procedure is found in Rule 54 of the Federal Rules for Civil Procedure.

Question 53

Most appeals are unsuccessful.

Question 54

Receivership secures the amount of judgment pending post-trial motions.

Question 55

It is best to wait to compile bills and costs until a case is decided, so that everything can be included at one time.

Question 56

What is the consequence for failing to renew a motion for judgment as a matter of law and a motion for new trial under the Unitherm Food case?

Question 57

Substituting your circuit number for the 6 in the Web site in Internet Assignment 1, what helpful information is available for appellate practice in your circuit?

Question 58

An experienced paralegal can assume the role of appeals manager.

Question 59

In the federal system, the notice of appeal is filed in the appellate court.

Question 60

The jury decides questions of law.

Question 61

A lien is

A) the term for domesticating a judgment.
B) intangible property.
C) recoverable in the bill of costs.
D) the same as a mortgage in some states.

Question 62

Lis pendens is

A) a record that the plaintiff has asserted a claim against property.
B) the process of securing property for the judgment creditor.
C) a motion included with the appellate brief.
D) a post-trial deposition.

Question 63

Which of these is intangible property?

A) Royalties rights of an author
B) Lien
C) A diamond ring
D) A certificate of deposit

Question 64

Which of the following does not provide guidance in writing appellate briefs?

A) Federal Rules of Appellate Procedure 28, 30, and 32
B) Appellate handbooks
C) Briefs for other cases
D) Guide to post-judgment enforcement

Question 65

Why is it important to determine a defendant's assets early in a case?

Question 66

A prejudgment remedy

A) is an early verdict.
B) is a directed verdict.
C) prevents the defendant from selling assets.
D) prevents the need to go to trial.

Question 67

The bill of costs includes

A) attorneys' fees.
B) witness fees.
C) special damages.
D) costs of jury investigation.

Question 68

Which of the following is an example of a question of fact?

A) Was the letter admissible evidence?
B) Was the road icy on the day of the accident?
C) Were jury instructions proper?
D) Was the statute constitutional?

Question 69

Parties are expected to agree on

A) the contents of the appendix to the appellate brief.
B) issues under appeal.
C) questions of law.
D) questions of fact.

Question 70

An example of a self-executing judgment is

A) transfer of a deed.
B) payment of $10,000.
C) divorce.
D) return of a painting.

Question 71

In what areas is a paralegal's assistance especially effective in appeals practice?

Question 72

The creditor's examination has the advantage of

A) flexibility.
B) being inexpensive.
C) reaching a variety of documents.
D) being quick.

Question 73

When are plaintiffs allowed to seize defendants' property before a trial?

Question 74

A debtor's property held by a third party can be obtained through

A) receivership.
B) garnishment.
C) domestication.
D) a bill of costs.

Question 75

Appeals are based on which of the following?

A) Questions of fact
B) Questions of law
C) Questions of intent
D) All of the above

Question 76

Under what circumstances will an appellate judge review evidence?

Question 77

What are three grounds for a motion for a new trial?

Question 78

If harmless error occurred at trial

A) the appeal will be successful.
B) a new trial will be granted.
C) the verdict will stand.
D) the matter will be mediated.

Question 79

The form for the appellate brief and appendices is

A) up to the appellant.
B) regulated in detail by the Federal Rules.
C) determined by the appellate judge.
D) determined by the trial judge.

Question 80

A motion asking that a judgment be set aside because the verdict was contrary to the weight of the evidence is a motion

A) to dismiss.
B) for a new trial.
C) for judgment as a matter of law.
D) for directed verdict.