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| Civil Procedure Course Outline |
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| Saturday, 02 December 2006 | |
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WHAT IS "CIVIL PROCEDURE?" - Just the Study of How to Have a Legal Fight; How Lawsuits Are Filed, and How They Can Get Dismissed: "The (Strategic) Rules of The Game"
"Art." = Article of U.S. Constitution "§" = Section of U.S. Code (Statutes) "Rule" = Federal Rule of Civil Procedure I. Basic Structure of the U.S. Legal System A. Three Branches of Government--Leg. (Art. I), Exec. (Art. II), and Judiciary (Art. III) B. Judiciary: Federal and State Systems--2 Separate and Distinct Systems C. Civil v. Criminal Law--Do Not Mix (this is "CIVIL Procedure") D. Three Levels of Courts--Trial, Appellate and Supreme Courts II. Suing in the Proper Court--Can We Sue In This Particular Court? A. Jurisdiction (The Court's Power and Authority) 1.Personal Jurisdiction (Over the Parties Themselves) Pennoyer v. Neff. a. Jurisdictional/"Long-Arm" Statutes b. Due Process/ "Fair Play and Substantial Justice" i. Traditional Tests aa. Presence bb. Domicile cc. Consent ii. Case-by-Case Analysis aa. General ("Substantial and Pervasive" Contacts) bb. Specific (Contacts "Highly Related" to the Lawsuit) iii. Additional Considerations aa. Purposeful Availment ("Voluntary and Foreseeable" Contacts with the Forum) 2. Subject Matter Jurisdiction (Over the Type of Case) a. Federal Question (§ 1331) Louisville & N. R.R. v. Motley b. Diversity (§ 1332) i. Citizenship-- "Domicile:" Permanent Residence Plus the Intent to Stay for the Indefinite Future--(Plaintiff Cannot Be From the Same State As Any Defendant) ii. Amount in Controversy (Must Be Over $75,000) c. "Concurrent" Jurisdiction" (Able to Sue in Either Federal State Court) d. Supplemental Jurisdiction (§1367) (Where an Additional Claim Can "Tag Along" on the jurisdiction of the Main Claim) e. Removal (§1441) (Transferring From State Court to Federal Court) 3. Venue (Dividing Further: State Court--Right County; Federal Court--Right "Judicial District"--(§1391)). III. Starting the Lawsuit - Pleadings (Filing Court Papers) A. Complaint (Rule 8)--Plaintiff's Legal Claim(s) for Recovery B. Service of Process (Rule 4)--Giving Formal Legal Notice of the Lawsuit to Defendant C. Lawyer's Responsibility in Signing Papers (Rule 11) (No "Frivolous" Lawsuits -- Reasonable Inquiry Grounded in Fact and Law or Good-Faith Extension of Law) D. Answer (Rule 8)--Defendant's Response to the Lawsuit E. Pre-Answer Motions to Dismiss (or "Fix") the Plaintiff's Complaint F. Defendant's Answer: Denials, Affirmative Defenses G. Amendments (Rule 15)--(Changing the Pleadings During the Case as New Issues Arise) H. Default (Rule 55)--(Defendant Never Shows Up or Quits Defending--"Forfeits") IV. Joinder (Adding Claims and Parties--What Happens When It Is Not Just One Plaintiff Suing Just One Defendant on Just One Claim) A. Claims (Causes of Action, Legal Theories of Recovery) 1. Permissive Joinder of Claims (Rule 18) (Adding or Starting Out with Many Claims Against Defendant(s)) 2. Counter Claims (Rule 13 (a) "Permissive;" or, (b) "Compulsory") (When Defendant Has a Claim (or Claims) Back Against the Plaintiff 3. Cross Claims (Rule 13 (g)) (When a Party--Plaintiff or Defendant--Has a Claim (Or Claims) Against a "Co-Party:" Plaintiff Against Plaintiff or Defendant Against Defendant [Same Side of the "V."]) B. Parties (Plaintiffs and Defendants) 1. Permissive Joinder of Parties (Rule 20) (When You "May" Add Parties) 2. Compulsory Joinder of Parties (Rule 19) (When You "Must" Add Parties (Rule 19(a) -- "necessary party"), or Be Forced to Drop the Lawsuit If They Cannot Feasiblely Be Added, But Are So Important to the Lawsuit, That They Are "Indispensable" (Rule 19(b) -- "indispensable party") 3. Impleader (Rule 14) (If Defendant Is Liable to Plaintiff, Then the Impleaded "Third-Party Defendant" Is Liable to Original Defendant (Now Also Called, "Third-Party Plaintiff") 4. Intervention (Rule 24) (An Outside Person, "Intervener," Who Wants to Come Into and Be an Additional Party in the Lawsuit) 5. Interpleader (Rule 22, §1335) (When a Person Has Money or Property--called the "Stakeholder"-- and Many People May Have a Claim Against That Person -- called the "Claimants"-- the Stakeholder" May "Interplead," or Sue, All of the "Claimants" in One Big Lawsuit, Instead of Having All of the Claimants Sue the Stakeholder in Many Different Lawsuits 6. Class Action (Rule 23) (When There Are Just Too Many Parties -- Hundreds or Even Thousands -- to Formally Be Joined into one Lawsuit, Those Parties Can Be Represented in a "Class Action" by Class Representatives) V. Erie Doctrine - Which Law Applies, Federal or State? Erie R.R. v. Tompkins A. Substantive Law: Rights and Responsibilities (e.g., Contracts, Property, Torts, etc.) -- "WHAT the Fight is About" V. Procedural Law: Lawsuit Rights and Responsibilities (e.g., Rules of Civil Procedure)--"HOW to Have the Fight" B. State Court, Apply: State Substantive Law, State Procedural Law C. Federal Court, Apply: 1. §1331 Federal Question--Federal Substantive law, Federal Procedural Law 2. §1332 Diversity--State Substantive Law, Federal Procedural Law D. What to Do in a Diversity Case When You Cannot Tell If It Is Substantive or Procedural and there Is a Conflict 1. "Harmonize" the Conflict 2. Check the Source of Federal Law--U.S. Constitution, U.S. Code, Federal Rule of Civil Procedure, Federal Practice or Local Rule VI. Discovery - (Rules 26-37) - Factual Investigation/Exchange ("Laying All of Our Cards Out on the Table") A. Discovery Plan (Rule 26(f)) (How Are the Parties Going to Schedule the Factual Exchange?) B. Initial Disclosures (Rule 26(a)(1)) (What We must Disclose at First Without Even Being Asked to Do So?) C. Expert Witness Disclosures (Initial Disclosure Requirements for Expert Witnesses) D. Pre-Trial Disclosures (What the Parties Must Disclose Before Trial) E. Scope and Limits of Discovery (How Far Can the Parties Go in Discovery?) F. What Can You Still Keep a Secret? (Work Product - Hickman v. Taylor, Legal Privileges, Protective Orders) G. How to Get More Information. - The Discovery Methods/Techniques 1. Rule 30 Depositions (Oral Question and Answer Session in Front of a Court Reporter by Opposing Attorney) 2. Rule 31 Interrogatories (Written Questions) 3. Rule 34 Production of Documents (Written Requests to Produce Potential Evidence--Documents, Physical Objects, Inspect Premises, etc.) 4. Rule 35 Mental and Physical Exams (Written Requests to Undergo an Examination If the Judge Finds There is "Good Cause" and the Examinee Has Put the Physical or Mental Condition Issue "In Controversy"--(e.g., Medical or Emotional Damages) 5. Rule 36 Requests for Admission (Written Requests to Make Certain Admissions So Those Issues Do Not Need to Be Proved at Trial--e.g., Where One Lives, Defendant Is a Corporation, There Was a Contract, Etc.) G. Sanctions against Disobedient Parties (Rule 37)--How to Compel a Party to Answer a Discovery Request VII. Resolution Without Trial A. Voluntary Dismissal (Rule 41)--Plaintiff Gives up the Lawsuit or the Parties Settle B. Summary Judgment (Rule 56)--Where There Is No Factual Dispute, So That an Actual Trial to Determine the Facts Is Completely Unnecessary; and Therefore the Judge Can Determine the Legal Dispute as a Matter of Law, Without the Need for a Trial (Celotex Corp. v. Cattret) VIII. Trial and Post Trial Motions A. Directed Verdict (Rule 50(a) -- "Motion for Judgment as a Matter of Law")--Where There Is Not Enough Evidence for a Reasonable Jury to Rationally Find for One Side So the Judge Can Decide the Case as a Matter of Law and Not Have to Wait for any Jury Verdict B. JNOV ("Judgment Notwithstanding the Verdict")(Rule 50(b)-- "Renewed Motion for Judgment as a Matter of Law")--Same as above, Only Made After the Jury Reaches a Verdict--then the Judge then Rules the Other Way C. Motion For New Trial (Rule 59)--Where the Verdict Is Based on Some Evidence but Is "Against the Great Weight of Evidence" or When There Is Some Flaw in the Trial Such That the Judge Believes a New Trial Is Necessary (NOTE: Not a Reversal of Outcome, Simply a Second Chance--a New Trial) IX. Appeals A. Final Judgment Rule--Can Only Appeal When Judge Has Made a Final Ruling B. Standards of Review--How Badly Did the Trial Court Have to Mess-up Before We Can Reverse? 1. De Novo 2. Clearly Erroneous 3. Abuse of Discretion C. Harmless Error--the Error Has to Effect the Outcome or Else it Is "Harmless" X. Past Adjudication: Respect for Judgments A. Claim Preclusion ("Res Judicata")--Parties Can Only Sue Once on a Claim Against Another Party That They Did, or Should Have, Sued on in the Past--So if You Don't like a Judgment, You must Appeal, Not Start All over Again with a New Lawsuit on the Same Claim--Parties Only Get "One Bite at the Apple" B. Issue Preclusion ("Collateral Estoppel")--If an Issue or Point of Fact Was Fully and Fairly Litigated in a Previous Lawsuit, Then That Issue or Factual Point Cannot Be Re-litigated in a Later Second Lawsuit KEY POLICY ISSUES: "JUDICIAL ECONOMY" = The Concern for EFFICIENCY: Resolving Disputes in a Manner that Minimizes the Costs in Terms of Money, Time, and Effort in Resolving Disputes on the Part of Both Litigants and the Courts "TRUTH & JUSTICE" = How Can We Maintain the Fair Pursuit of These Paramount Goals of the Law and Still Factor in the Concern for Judicial Economy--We Want to "Get it Right," but We Also Need to "Get it Done.""FAIR ACCESS" = Has Litigation Become So Expensive and Time-Consuming That It Is Effectively Reserved for the Rich Who Can Pay for It and the Poor and Middle Class Are Effectively "Shut Out" of the System? "TOO MUCH ACCESS" = Are There Too Many Lawyers Filing Too Many Frivolous Lawsuits in an Effort to Obtain Quick Settlements and In Effect "Blackmail" Businesses? |
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| Last Updated ( Sunday, 03 December 2006 ) |
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