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Civil Procedure — jury instructions

By: WISCONSIN LAW JOURNAL STAFF//August 15, 2014//

Civil Procedure — jury instructions

By: WISCONSIN LAW JOURNAL STAFF//August 15, 2014//

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U.S. Court of Appeals for the 7th Circuit

Civil

Civil Procedure — jury instructions

Where the defendant suffered no prejudice from the plaintiff’s tardy request to assert the proper legal standard, the district court erred in permitting the case to be tried on an incorrect standard.

“Lastly, we note that we cannot find anything in the record to suggest that King or her counsel ‘acted willfully, deliberately, [or] in bad faith’ in waiting until late in the litigation to request an amendment of their legal theory. Cf. Salata, 2014 WL 3045772, at *3. The district court did not make any such finding, nor did it conclude that the delay was for a strategic advantage. Indeed, it is difficult to see why this shift would have been withheld until the eleventh hour as a strategic move to throw the litigation into disarray: the Fourth Amendment standard was a more favorable standard for the Plaintiff-Appellant, and she stood to benefit from presenting the correct legal theory earlier in the litigation. At worst, King’s attorneys may have been negligent in failing to identify the correct legal theory sooner, but they are not guilty of gamesmanship or a last-minute ambush. A district court that detects chicanery of this nature may be justified in denying a change in legal theory — but that was not the case here.”

Reversed in part, and Affirmed in part.

13-2379 King v. Kramer

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Tinder, J.

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