Friday, February 3, 2017

Sample Answer for Essay I

The sample answer is after the jump. This is a model of how I want you to do the analysis, not necessarily the conclusion I was expecting or wanting. But do note how I answered and how I would like to see you approach: 1) Full rule, beginning with statutory text, then its elaboration and interpretation, leaving no open words or terms unexplained; 2) Application of that rule to the facts, getting specific about the facts supporting my conclusionand always explaining "why" for any legal or factual conclusion.

Some common mistakes/problems:

1) Too conclusory, either in explanation of the rule (leaving terms or concepts undefined or unexplained or not getting into the reasons and policies behind the rule) or in application (not explaining what question of law or fact was common and why it would be common in both actions). Because you have the space, I want to see a more-detailed rule analysis than you might, for example, do on a short answer.

2) Case analogies for no reason. If you are going to analogize to a case, you have to explain why that case suggests anything about this case. Several people analogized to Morgan, without explaining why Morgan is similar to this case (hint: I am not sure it is). Analogous cases must be analogous in some meaningful way, where those similarities matter. Otherwise, in an assignment this short where you are operating on general principles and have not done a ton of case research, don't bother.

3) A question of law for 20(a)(1)(B) or (a)(2)(B) purposes is the legal rule or standard or issue. Whether both statements were defamatory is not a question of law. The common question of law is defamation law, which applies to both cases.

4) Similarly, the truth of the allegations (whether Trump committed sexual assault) cannot be a common question of fact because the answer to one has nothing to do with the other.

5) Several of you argued that both sexual assaults were the same transaction or occurrence or that "wrongdoing" by the defendant created S/T/O. Without more, that can't be right--it would be even broader than Smith in the separate accident with a Wal Mart driver.

Finally, because people have asked:

Section A: Mean was 15.1; Median was 15

Section C: Mean was 12.3; Median was 13

Note that no letter grade is assigned. I do not assign letter grades until I calculate everything at the end of the semester and curve it.


Zervos v. Trump
Stoynoff should not be able to join her defamation action with Zervos’s defamation action, because the requirements for permissive joinder of plaintiffs under FRCP 20 are not satisfied. But if Stoynoff files a separate action in the same federal district, they can be consolidated for limited purposes under FRCP 42.

Plaintiffs may join in a single action when their claims for relief arise out of the “same transaction, occurrence, or series of transactions or occurrences.” FRCP 20(a)(1)(A). Courts use two tests to define same transaction or occurrence. The more common “Logical Relationship” Test asks whether the essential facts of each claim are so logically connected that considerations of judicial economy and fairness dictate that the issues be resolved in one lawsuit. The question is whether there is enough connection between the events giving rise to each plaintiff’s claims that it is logical to resolve them as a single litigation unit. Other courts apply the “Save Evidence” Test, which asks whether substantially the same evidence will be used in proving each plaintiff’s claims. Courts may define “same transaction or occurrence” broadly or narrowly, in their discretion. But parallel or similar harm to different plaintiffs that happens to involve similar misconduct by the same defendant, without more, typically is not sufficient.

If, but only if, FRCP 20(a)(1)(A) is satisfied, we turn to FRCP 20(a)(1)(B). This requires that “any question of law or fact common to all plaintiffs will arise in the action.” FRCP 20(a)(1)(B) is disjunctive—the plaintiff need only show a common question of fact or a common question of law; she need not show both.

Joinder fails at the first step, because Stoynoff’s defamation claims do not arise from the same transaction or occurrence as Zervos’s defamation claims. There is no logical relationship between them. There is a small connection in that some of Trump’s allegedly false statements, quoted in Zervos’s complaint, made blanket denials of all the sexual-assault accusations by all accusers against him, which would include both Zervos and Stoynoff (who came forward on October 12, 2016). (See Zervos ¶ 74: “Every woman lied when they came forward to hurt mycampaign, total fabrication. The events never happened. Never. All of these liars will be sued after the election is over.”) (See Zervos ¶ 63: “Nothing ever happened with any of these women.”). But these are non-specific, referring to an unknown number of unnamed women, not connecting statements about Stoynoff to statements about Zervos. Many of Trump’s other allegedly false statements described in the Zervos Complaint were only about Zervos and only denied her allegations or accused her of lying (See Zervos ¶ 55: “To be clear, I never met her at a hotel or greeted her inappropriately a decade ago.”), while many of the allegedly false statements and accusations of lying that will be included in Stoynoff’s Complaint only deny her allegations, without mentioning Zervos. More importantly, the events that Trump was denying in his allegedly defamatory statements about Zervos bear no logical relationship to the ones about Stoynoff. Each involved separate events occurring several years apart, connected only by the common identity of the defendant. The truth or falsity of the claims about the assault on Zervos bear no logical relationship to the truth or falsity of the claims about the assault on Stoynoff. Given these factual differences, these claims do not make sense as a single litigation unit, beyond the identity of the defendant. The more-essential facts are not so related that fairness dictates litigating them together.

The same-transaction-or-occurrence analysis fares no better under the Same Evidence Test. While the same evidence will be used to prove the statements by Trump responding to all the accusers, evidence of distinct statements about each accuser will be different. More importantly, evidence showing the truth or falsity of the statements will be different—evidence showing the truth of Zervos’s allegations (and thus the falsity of Trump’s denials and his calling her a liar) will be entirely different from evidence showing the truth of Stoynoff’s allegations (and thus the falsity of Trump’s denials and his calling her a liar).

The absence of a same transaction or occurrence makes joinder improper, because FRCP 20(a) uses the word “and,” making it conjunctive and requiring that both (A) and (B) be satisfied. And the second prong of the joinder analysis is satisfied here. There are questions of law common as to both plaintiffs—both actions assert claims for defamation, meaning the applicable legal rules and standards will be the same in both cases.

While Stoynoff must file a separate action, the court can streamline and make litigation of both actions more efficient through FRCP 42. If separate actions pending in the same district involve a common question of law or fact, the court may join some or all issues for trial or hearing, consolidate the actions, or issue other orders to avoid “unnecessary cost or delay.” FRCP 42(a)(1)-(3). If the court consolidates, it may do so for all purposes, essentially creating one action, or only for limited purposes, retaining two actions but bringing them together for certain pretrial matters, such as discovery. A court may consolidate for all purposes only if the parties could have been joined in one action in the first instance; FRCP 42 cannot be used to override FRCP 20.

As discussed above, these actions involve a common question of law, in that both involve defamation as the applicable substantive law. Because joinder would have been improper for the reasons stated above, however, any consolidation would be for limited purposes only and each action would remain distinct.
The court might consider consolidating these actions for some discovery, such as any deposition of Trump. The court also might hold a common hearing on any common defenses that Trump may raise to both actions.