Sum and Substance Quick Review on Civil Procedure
Authors:
Miller, Arthur R. / Friedenthal, Jack H.
Edition:
7th
Copyright Date:
2008
27 chapters
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- Sum & Substance
- Thomson/West have created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson/West are not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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Preface 6 results (showing 5 best matches)
- These materials place some emphasis on practice in the federal courts, particularly the Federal Rules of Civil Procedure. This is because these Rules have served as a model for procedural reform in a large majority of the states and provide the background for most civil procedure courses. State practice is not slighted, however, and comparisons between different approaches are drawn throughout this work.
- purpose is to help students learn and understand the materials encompassed in civil procedure courses. There are no footnotes. Case citations are kept to a minimum to preserve a comprehensible flow and to avoid interminable scholastic qualifications. Of course, in order to facilitate a succinct treatment of the basic issue of civil procedure it has been necessary to generalize to a great degree. Although we have sought to limit out generalizations to well accepted controlling principles, the reader should recognize that this work is not designed for the daily practice of law in which exceptions to generalizations and exceptions to the exceptions frequently dominate a practical problem. Our ultimate goal has not been to cover American civil litigation and trial practice in all their intricacy, but to prepare a basic student text on a complex topic whose application is subject to many refined levels of sophistication.
- This book is designed to help you understand the basic concepts and principles of civil procedure. It often is difficult to understand a textual discussion of a procedure problem in the abstract; consequently, we have illustrated numerous principles with hypothetical examples to insure that the operation of each aspect of the litigation process is seen against a concrete factual background.
- The text is structured to assist your classroom study and supplement the standard casebooks in this area. We have allowed ample space for comments and annotations from your class sessions and other readings. We wish to emphasize that this book is neither a series of “canned briefs” nor a skeletal course outline. It is
- The authors are anxious to develop and improve the new text format in future editions and we solicit your comments, criticisms, and advice. Please send your remarks to Thomson/West, Attn: West Education Group, 610 Opperman Drive, Eagan, MN 55123.
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About the Authors 2 results
- Arthur R. Miller is now a University Professor at New York University after being the Bruce Bromley Professor of Law at Harvard Law School, where he taught for 34 years. He earned his A.B. from the University of Rochester and his LL.B. from Harvard Law School. He has frequently appeared on television, as legal editor for ABC’s , on the Discovery Channel’s , and as moderator of Socratic dialogues broadcast on PBS. Professor Miller is author or co-author of over forty books, including
- Jack H. Friedenthal is the former Dean and now the Howrey Professor of Law at The George Washington University Law School where he has taught since 1988. Dean Friedenthal received his A.B. (Great Distinction; Phi Beta Kappa) from Stanford University and his J.D. (Magna Cum Laude) from Harvard Law School. He is the author or co-author of numerous widely recognized books and articles, including
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Chapter XV. Appellate Review 45 results (showing 5 best matches)
- Sometimes a case may involve technical or procedural matters not directly related to the substance of the dispute between the parties. An order on a collateral matter may constitute a final decision and, if so, is but only if review of the order does not require the appellate court to determine ongoing aspects of the litigation.
- Every state has at least one appellate court to review the records of trial court proceedings. The function of an appellate court is to determine whether reversible error has been committed—appellate courts do not retry cases. This chapter will discuss when appeal may be sought, the scope of review, the basic elements of appellate procedure, and the structure of appellate systems.
- Appellate courts have been more willing to review trial court decisions granting additur and remittitur than other new trial decisions. Because additur and remittitur can result in the taking of an important segment of a case from the jury, these procedures must carefully be monitored to ensure that they are not misused to subvert the constitutionally based jury trial system.
- An appellate court may review a lower court’s decision on a motion for judgment as a matter of law (directed verdict or judgment n.o.v.), since the taking of the case from the jury is a question of law. A more difficult question is whether the court should review the grant or denial of a new trial based upon the weight of the evidence. Appellate courts are most reluctant to overturn trial court decisions on this basis. Most jurisdictions avoid the problem when a new trial is granted, because there is no final decision at that point [but see ]. Even when review is permitted, its scope necessarily is restricted by the fact that only the trial judge has seen and heard the witnesses and observed the impact of various aspects of the case on the trier of fact. Only when there is a clear showing that the trial court has
- In an action by X against Y Corporation for breach of contract, X successfully seeks a trial court order requiring Y’s president to submit to a mental examination for the purpose of ascertaining his capacity to enter into a contract. Y’s attorney believes the order to be improper, but Y’s president does not want to risk a contempt citation for failing to obey it. Therefore, unless an interlocutory appeal is permitted, the president will submit to the examination, and, whatever the outcome of the case on the merits, the issue normally will not be subject to review since neither of the parties is aggrieved. It thus is possible for different trial courts in a jurisdiction that follows the final judgment rule to take inconsistent positions on a procedural issue for a substantial period of time before the issue will arise in a posture to allow appellate review.
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Chapter II. Selecting a Proper Court 182 results (showing 5 best matches)
- The remaining material in this chapter will focus on the subject matter jurisdiction and venue principles governing the United States district courts. The reason for this is that the federal scheme, which, given the character of the federal courts, is a national scheme, provides a useful and particularly relevant model for exploring problems of subject matter jurisdiction, venue, and federalism. Not surprisingly, therefore, many first year teachers of civil procedure and many procedure casebooks focus on the federal scene in developing this material. It should be understood, however, that the analysis that follows is designed for procedure courses, not for more advanced courses in federal courts or federal jurisdiction.
- Section 1407 permits the temporary transfer of multiple civil actions involving common questions of fact to a single district for consolidated pretrial proceedings. The statute authorizes the Judicial Panel on Multidistrict Litigation to order transfers on its own initiative or on a party’s motion. The Panel usually holds a hearing and any party involved in any of the actions may introduce evidence relevant to the merits of a temporary transfer. The statute directs the panel to consider the convenience of the parties and witnesses as well as other factors relating to the just and efficient conduct of the actions.
- Numerous federal statutes create substantive rights that are enforceable in the federal courts on the basis of federal question jurisdiction. Some of the better known enactments are: the patent, copyright, antitrust, securities, civil rights, and various interstate commerce acts.
- A corporation has only one principal place of business for diversity purposes; this is true regardless of the number of states in which it may be doing business. Three tests have been developed by the lower federal courts for determining a corporation’s principal place of business. The first, which seems to be the more popular, is the so-called “nerve center” test; it focuses on the location of the executive and administration functions of the corporation. The second is the so-called “muscle” test; it looks to the place where the corporation’s manufacturing or service activities are centered. In many cases the first and second tests will produce the same result. Some courts, recognizing that the first and second tests differ in semantics more than in substance, have adopted a hybrid approach known as the “total activities” test; it considers the totality of the relevant circumstances surrounding a corporation’s business activities in order to locate the principal place of business...
- (1926)]. A much greater expansion of ancillary jurisdiction came in 1938 with the adoption of the Federal Rules of Civil Procedure. As discussed below [see ], the use of the transaction-and-occurrence standard in certain Rules governing joinder of claims and parties created a fertile field for the increased application of ancillary jurisdiction, since the court in
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Chapter I. Introduction and Historical Background 15 results (showing 5 best matches)
- Civil procedure courses generally encompass the process, in civil as opposed to criminal cases, of selecting a proper court in which a case can be heard, identifying the nature of the grievances and the defenses thereto, determining the proper parties, preparing for trial, deciding the case with or without trial (and, in the event of trial, with or without a jury), challenging the decision on appeal, enforcing a final determination, and giving appropriate effect to a judgment in subsequent litigation. This book will deal with all of these subjects in the same chronological order in which they occur in litigation.
- Much of the language, form, and even the substance of modern procedure was developed as part of English common law over a period of nearly 1,000 years. From the power of the king to deal with grievances when they affected not only the parties but the peace of the realm, there developed a king’s court or King’s Bench (or Queen’s Bench, as the case may be) with wide-ranging jurisdiction over many cases. Together with the Court of the Exchequer and the Court of Common Pleas, both of which developed out of the king’s ministerial offices, they provided a system of monetary redress for deserving litigants. However, as these courts, known as the “law courts,” developed, their procedures became rigid and the types of cases they entertained became static despite changing social conditions.
- To take a grievance to a law court, a complainant would first purchase a “writ,” which essentially was an order. Once served by the sheriff, the writ required the defendant to appear in court to respond to the complainant’s allegations. There were a number of different types of writs, each covering a specific type of case. To prevail, a party first had to be certain that the writ being employed covered the facts to be proved. If the wrong writ was chosen, the defendant would win. Under the writ system, procedure and substance were intertwined. Each writ had its own set of rules for stating the case, making defenses, and many other aspects of procedure. To be a top notch lawyer, one had to know all the nuances of the practice under each and every writ.
- The dual law-equity system was imported into the United States, but with some major differences. For example, in many, but not all, states and in the federal courts, the same judges exercised both equitable and legal powers. However, cases were designated as being in law or in equity and were dealt with differently according to that designation. Many of the differences in treatment were eliminated beginning in 1848 when a number of states, led by New York, developed comprehensive new codes of procedure, which provided a uniform procedure for all civil cases. At the present time there are very few states that still have procedural distinctions depending upon whether the case seeks legal or equitable relief. Nevertheless, to the extent that differences between law courts and equity courts are locked into a federal or state constitution, it still is important to know and recognize the character of the different actions. The most notable context in which the distinction is still vital...
- In any jurisdiction the ultimate source of procedural regulation is the local constitution. Although constitutions typically provide some specific direction with respect to the nature of a jurisdiction’s courts and their powers [see, e.g., United States Constitution, Article III], and the right to trial by jury [see, e.g., United States Constitution, Seventh Amendment], very little else is set out in detail. Usually the legislature, operating under a general power to establish a judicial system, enacts a Civil Procedure Code. In 1934 Congress delegated much of its procedure-making power to the United States Supreme Court, and many state legislatures have since granted similar powers to their highest courts. In general, these delegations have been very successful. Judges seem able to make important procedural changes when legislators, who are directly subject to political pressures from interest groups and often have little political incentive to deal with the subject, cannot do so.
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Chapter XI. Adjudication Without Trial 76 results (showing 5 best matches)
- If a default has been entered and it is clear from the complaint that a certain sum and only that sum is due to the complainant, the clerk of the court may enter a default judgment for that sum. Otherwise, the complainant must apply to the court, which will enter a default judgment only after proof as to the appropriate relief has been presented.
- No review of a summary judgment denial is possible in those jurisdictions that follow the final judgment rule [see ] until the disposition of the entire suit is determined. At this point, the moving party must show that the denial of the motion prejudiced his or her suit in some way. If summary judgment is granted on an entire case, the lawsuit is terminated on the merits and an immediate appeal is available. Some appellate courts will submit the judge’s decision to plenary review, considering the motion to be an issue of law and therefore according the trial judge no special deference. Other appellate courts view the decision as one of weighing the credibility of evidence and will reverse only if it appears that the trial judge abused his or her discretion. In exceptional circumstances, a decision to deny summary judgment or to grant it only on a portion of the case might be subject to review immediately through one of the exceptions to the final judgment rule [see
- P sues D for personal injuries, requesting damages in the sum of $5,000. D fails to answer and P seeks judgment by default. At the default hearing, P provides evidence of medical bills in excess of $10,000. The court cannot grant P judgment for any amount greater than the $5,000 pleaded.
- A lawsuit may be terminated prior to trial for a number of reasons. Those reasons resulting from pleading defects are discussed in Chapter Five. This chapter deals with the two most significant procedures for adjudicating and ending an action before trial—summary judgment and default judgment.
- If the moving party has made a showing based on the record, or has submitted affidavits or other materials that, if believed, would justify summary judgment, the respondent has the burden of replying by submitting contrary information showing that a genuine issue of fact exists.
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Chapter VIII. Class Actions, Intervention, and Interpleader 134 results (showing 5 best matches)
- For more than four decades the class action has been an extremely popular and controversial procedure, particularly in the federal courts. It has been used extensively in antitrust, securities, products, environmental, discrimination, and welfare benefits litigation. The enormous increase in class action activity often is attributed to the liberalizing revision of Federal Rule 23 in 1966. However, the trend probably also reflects changes in the substantive law in the areas mentioned above, increased attention to social action litigation, and the attractiveness of class action attorney’s fee awards. Whatever the cause, the class action has imposed burdens on the judiciary and corporate defendants and has led some to challenge it as a “Frankenstein monster.” On the other hand, the procedure may represent the only viable method for people with small claims to vindicate their rights or with civil rights claims to litigate important social issues. Supreme Court decisions [see and
- CAFA provides the federal district courts with original and removal jurisdiction over class actions involving 100 or more proposed plaintiff class members when any plaintiff is diverse in citizenship with regard to any defendant, and when the sum or value of all class members’ claims exceeds $5,000,000. CAFA applies only to class actions initially filed on or after February 18, 2005, and is subject to certain enumerated exceptions. When an action originally is brought in state court, a defendant seeking removal pursuant to CAFA bears the burden of proving that the statute’s requirements have been satisfied.
- Class action practice differs from state to state, with some states having extremely limited rules. Probably the most liberal approach to class action litigation is found in Section 382 of the California Code of Civil Procedure, which provides only that “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” The most striking difference between this provision and Federal Rule 23 is that California courts are not required to differentiate among different types of class actions as federal courts are required to do [see
- Interpleader may be secured in the federal courts in either of two ways: under Rule 22 of the Federal Rules or under the Federal Interpleader Act, 28 USC 1335 (jurisdiction), 1397 (venue), and 2361 (process and procedure). Although these two procedures embody the basic principles of interpleader discussed above, there are some important differences between them.
- For a number of years, the Federal Rules Advisory Committee has been considering amending Rule 23. It has proposed incorporating the likelihood of a claim’s success as a factor in the certification decision and that Rule 23(b)(3) require a class action not only to be the “superior” but also the “necessary” method of adjudication. Because of substantial opposition, both of these proposals were withdrawn. In addition to these matters, the Committee has under consideration proposals for a small-claims common question class and for a fourth type of class, the settlement class. The small-claims proposal has produced much controversy, and the Committee has deferred treatment of the settlement class proposal in order to digest the Supreme Court’s decision in (1997). New proposals that were adopted in 2003 increased the court’s control over the class action process regarding notice, the appointment of class counsel, and attorneys fees. The changes to the Federal Rules of Civil Procedure...
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Chapter III. Jurisdiction Over Persons and Property 136 results (showing 5 best matches)
- (1966), a Canadian citizen insured by a New York company was involved in an auto accident in Vermont with New York residents. The New York residents were allowed to sue in New York on the basis of quasi in rem jurisdiction by attaching the insurance company’s contractual obligation to defend and indemnify the Canadian insured. The because the very existence of the debt that was attached depended on the outcome of the case. If fully extended, the principle would have allowed quasi in rem jurisdiction in any case in which the substance of the action involves a dispute over title to the attached property. This “boot strap” jurisdiction was rejected by a number of courts in other states even before the decision in Nevertheless, some New York state and federal courts continued to uphold on the ground that the “true defendant” was the insurance company and the attachment procedure was merely a means of asserting jurisdiction over the company wherever it was doing business.
- (1991), the defendant challenged the constitutionality of a Connecticut attachment statute after the plaintiff sought attachment of the defendant’s $75,000 home to ensure that assets would be available to satisfy the judgment in a civil assault and battery case that the plaintiff was instituting against the defendant. The statute authorized prejudgment attachment of real estate without a hearing. It required the plaintiff to swear that his claim was based on probable cause, but did not require him to post a bond and did not provide for pre-attachment notice to the defendant. Ruling on the defendant’s constitutional challenge, the Supreme and to articulate a three-part test for scrutinizing prejudgment attachment and similar procedures. The Court balanced (1) the debtor’s property interest, (2) the risk of erroneous deprivation and the probable value of additional or alternative safeguards, and (3) the interest of the party seeking the prejudgment remedy. The Court invalidated the...
- The popular creditor’s remedies of prejudgment garnishment, attachment, and replevin may violate due process if the defendant is not afforded notice of the proceeding and a fair opportunity to be heard. [See the discussion of these procedures in Chapter Seventeen.] In principle was extended to an ex parte prejudgment replevin procedure. In a case of significance decided two years later, (1974), a divided Court held that a Louisiana prejudgment replevin procedure satisfied the due process requirement and seemed to retreat from, if not overrule, by striking down a Georgia garnishment procedure in a commercial and non-consumer setting. [The decision probably has no effect on
- notice on the defendant’s property—even when the litigant’s name and address were known. Justification for this procedure was based on the metaphysical notion that an individual has a symbiotic relationship with his or her property and somehow is aware of what is going on with regard to it, and further, that the owner would have a caretaker overseeing the property who would inform the owner of the institution of the action and of the posting of notice. The unrealistic character of these justifications and increased sensitivity to due process concerns have led courts to require the same kind of reasonable notice that is needed for in personam actions. Unfortunately, a number of unconstitutional statutes authorizing notice by posting or publication remain on the books of many states.
- In both state and federal practice, once the question of the trial court’s jurisdiction has been fully litigated between the parties, whether in connection with a special appearance procedure or otherwise, it may not be raised again by the defendant in another case by way of collateral attack.
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Chapter IV. Determining the Governing Law 73 results (showing 5 best matches)
- A test that tries to determine whether the application or non-application of a particular rule might have substantial effect on the outcome of a case is very difficult to apply since prediction at the outset of a lawsuit may simply be guesswork. In addition, the case’s emphasis on the limited role of federal courts sitting in diversity jurisdiction appeared to destroy the independence and creativity of the federal courts in this class of cases and to reduce the federal court to what one federal judge referred to as “a ventriloquist’s dummy.” The approach also created concern about the viability of the Federal Rules of Civil Procedure because almost any procedural rule might affect the outcome of a case if used in lieu of a different state practice. The specter of this result caused many commentators to criticize
- In a personal injury diversity action in a federal court in State X, D seeks a physical examination of P under Federal Rule 35. P objects on the ground that physical examinations are not permitted in civil actions in the courts of State X and that Federal Rule 35 is invalid because it exceeds the Supreme Court’s rule-making power. The physical examination will be ordered because Rule 35 is a valid regulation of procedure and
- A final option for a federal court faced with a difficult issue of state law is to certify a question to the applicable state high court. The certification procedure enables a federal court to obtain an authoritative and binding statement on state law from the state’s highest court. Certification is only available if the forum state’s high court accepts such questions; most, but not all, states allow it, although the particulars of the procedure vary greatly by state. Finally, a federal court’s invocation of the certification procedure does not guarantee a response. For various reasons, including an overburdened docket or the fact-dependent nature of the inquiry, state high courts often refuse to answer certification inquiries.
- (1996), the Supreme Court held that a federal court had to apply a state statutory standard for review of damage awards. The statute at issue required courts to use a less deferential standard of review when examining damage verdicts than at common law and to order a new trial when the recovery was excessive. Following doctrine, the Court found that if federal courts failed to apply the state standard, substantial variations in recovery would arise between federal and state courts, thereby undermining the twin aims of —the discouragement of forum shopping and the avoidance of the inequitable administration of the laws. Therefore, just as analysis, federal courts must follow state statutory caps on damages.
- which it described as (a) discouraging forum shopping and (b) avoiding the inequitable administration of the laws. As to the first, the difference between the two procedures for service of process clearly would not have been important enough to influence counsel’s choice of a court in would arise. The minimal difference between the state and federal procedures for service of process involved in would not result in any significant benefit to a noncitizen who is able to choose between a state and a federal forum. Therefore, the application of the federal practice posed no risk of unequal administration of the law.
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Chapter V. Modern Pleading 165 results (showing 5 best matches)
- Illustration 3: Avoiding Negative Pregnants and Conjunctive Denials. [§5.5263]
- P files suit against D, alleging as follows: “On or about December 1, 1960, P entered into a contract with X to purchase Greenacre for the sum of $50,000. Both P and X complied with all the requirements of the contract. Thereafter, on or about February 10, 1975, D committed a trespass on Greenacre, all to the damage of P in the amount of $12,000.” Under code pleading rules the complaint would be defective in that ownership is alleged only by evidentiary facts and “trespass” would be considered a conclusion of law. Under notice pleading rules, however, the complaint would be held sufficient, since P has adequately notified D of the precise date of the offense and its general nature.
- A negative pregnant or conjunctive denial occurs when a defendant denies an allegation so specifically that if the denial is taken literally, either the general substance of the allegation or one of its major elements is not controverted. In notice pleading jurisdictions, negative pregnants and conjunctive denials generally are treated as mere defects of form, and thus are held to be effective denials of the allegations to which they are addressed.
- Some jurisdictions require verification in various types of actions. These may be cases in which parties are more likely to be untruthful (e.g., divorce cases) or in which the institution of suit could be used as a form of coercion to secure a quick settlement (e.g., shareholder derivative actions).
- Pleadings can be challenged on the ground that they are substantively insufficient, that they are irregular or improper in form, or that they reveal some defect in procedure that should result in an abatement of the action.
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Chapter XIV. Instructions, Verdicts, and Post–Trial Motions 111 results (showing 5 best matches)
- P receives a large sum for permanent paralysis of his legs. Six months after trial, a new surgical technique is developed that will enable P to walk normally. Most courts will not permit a motion by D to set aside the judgment and allow a new trial on damages.
- Federal Rule 52 is typical of the law in almost every jurisdiction in requiring the trial judge to accompany the decision with formal findings of fact and conclusions of law in non-jury cases. Since no instructions are given in non-jury cases, such findings and conclusions are necessary to ensure that the trial judge and also for purposes of review on appeal and the application of res judicata and collateral estoppel. [For the standard of appellant review of facts found by the trial judge, see
- A losing party may move for a judgment n.o.v. and, in the alternative, for a new trial. In such a case, the trial judge is required to make a conditional ruling on the motion for a new trial when the judgment n.o.v. is granted, in order to save time in the event that the judgment n.o.v. be reversed on appeal. If the decision on the judgment n.o.v. is appealed, the appellate court also may review the question whether the trial court abused its discretion in conditionally granting or denying the new trial.
- Invariably the trial judge reads the instructions to the jury aloud. The way in which he or she does so often is as important as is the substance itself. The more care a judge takes in presenting the instructions in a meaningful way, the more likely they are to be understood and followed by the jury.
- Instructions usually are given at the end of the trial, after the attorneys’ closing arguments. It is generally believed that the court, not the lawyers, should have the last word prior to jury deliberations. In a few courts, however, the instructions precede the lawyers’ arguments. This procedure is justified on the ground that an argument is far less meaningful if it is made in the abstract, without the jurors having first learned of the law that is to be applied. Federal Rule 51(b)(3) allows the court to instruct the jury any time after trial begins and before the jury is discharged.
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Chapter XVII. Securing and Enforcing Judgments and Orders 40 results (showing 5 best matches)
- Ordinarily, the validity of the underlying decree may not be challenged in a criminal contempt proceeding. If, however, there were no effective opportunity for securing judicial review of the order before its effect became oppressive, the order’s validity may be challenged collaterally in the contempt proceeding. But the policy against self-help requires this exception to be construed restrictively. Error or even probable unconstitutionality of the order does not justify non-compliance. Only a transparently invalid court order, when speedy appellate review is unavailable, may be disobeyed and later challenged in the contempt proceeding [ (1967)]. In many states, the validity of the underlying decree may be attacked in a civil contempt proceeding on the theory that if the order is invalid, the party who was successful in the original action is not entitled to damages for the alleged contemnor’s noncompliance.
- b. Procedure for Civil Arrest. [§17.1420]
- A civil contempt citation against a party to the original action is interlocutory; thus, in a final judgment rule jurisdiction [see ], an appeal must await the rendition of a final judgment. If, however, the civil contemnor is a non-party, the appeal may be taken immediately. When the contempt order is criminal, or both civil and criminal, the order is final and appeal is available at once.
- If the primary purpose of punishing the contemnor is to vindicate the authority of the judicial system, the contempt is criminal. On the other hand, if the ultimate objective of the sanction is to give the successful litigant the benefits of the order that is being disobeyed, the contempt is civil. In either case, the penalty may be a fine or imprisonment or both. However, a person may terminate incarceration for civil contempt simply by complying with the court’s order. In that sense the contemnor is said to have the keys to the jailhouse door. But since the objective of criminal contempt is primarily punitive, a criminal contemnor usually is incarcerated for a fixed period. As long as the contemnor is not prejudiced, civil and criminal proceedings may proceed simultaneously.
- Historically, civil arrest involved taking a defendant who was likely to leave the jurisdiction into custody and keeping him physically restrained until either bail was posted or judgment was rendered. The abuses that accompanied this practice led many legislatures either to prohibit or to restrict the availability of this provisional remedy. For example, New York first limited civil arrest to actions based on fraud, deceit, or conversion. Even in those cases the remedy could be used only when the person to be arrested was not a parent or guardian or a dependent child or incompetent. Subsequently, New York eliminated the remedy completely.
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Chapter IX. Discovery 164 results (showing 5 best matches)
- Discovery refers to those procedural devices by which a party or potential party to a lawsuit obtains information relating to the case. The need for some court procedure to allow a party to obtain and preserve evidence was recognized in early English equity practice. Not until the promulgation of the Federal Rules of Civil Procedure in 1938, however, did pretrial discovery, as we know it today, become a vital part of the litigation process. And indeed, the Federal Rules revolutionized trial practice in the United States. Almost every state has adopted a set of regulations for widespread discovery modeled after the Federal Rules.
- called to testify at trial. It also permits the attorney to pin down the witness as to essential factual details that are relevant to the case. Most importantly, the attorney is able to “follow up” on the witness’ answers, and pursue different lines of interrogation than originally contemplated. None of this would be possible if a witness merely responded to questions while at home or in his or her office, with the benefit of counsel, and with no direct confrontation by the deposing attorney. Unfortunately, the extremely high costs of this procedure often prevent it from being utilized.
- P, who is claiming damages for permanent leg injuries, seeks to learn the substance of a statement she made to D’s attorney three months after the injuries occurred. The statement appears to show that P took part in a tennis tournament in spite of the problems with her legs. At trial P will be able to explain that she attended the tennis tournament as a spectator and was confined to a wheelchair at that time.
- without making any showing of need. Federal Rule 26(b)(3) specifically so provides. The reason is that under ordinary rules of evidence, one party always may introduce a statement of an opposing party at trial. Because it is a party’s own statement, it often will have a great impact on the trier of fact. It is unfair to preclude the party who made the statement from reviewing it prior to trial in order to be prepared to counter the statement’s adverse effects.
- Federal Rule 34, and comparable rules in some states, permit inspection on notice without a court order. If the party from whom discovery is sought refuses to permit the inspection (for example, on the ground that the items sought are not relevant), the discovering party then must go to court for a determination and appropriate sanction. In other states, however, the discovering party must move for a court order based upon a showing of good cause before discovery is permitted. This requirement stems from the deep-seated belief that interference with a person’s property is a serious matter bordering on an invasion of privacy. To establish good cause, it is not sufficient to show that the material sought is useful and relevant. The party seeking discovery must demonstrate that unless discovery is allowed, it would be impossible or highly impractical to obtain vital information.
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Title Page 1 result
Index 254 results (showing 5 best matches)
Table of Contents 100 results (showing 5 best matches)
Chapter X. The Pretrial Conference 16 results (showing 5 best matches)
- The pretrial conference can be very useful in assisting the court and the parties to prepare for trial. The issues can be clarified, the pleadings can be amended, discovery can be controlled, the parties can agree upon admission of items of evidence and upon the number of witnesses to be called, and the format and sequence of trial can be arranged. Federal Rule 16 underscores the importance of the conference as a means of overall case management, not merely a time for the exchange of information or ritualistic stipulation as to minutiae. The rule makes it clear that the court, not the parties, has the discretion to direct the conference and take action with respect to the items listed. The rule further permits consideration of still other issues including such matters as limits on the proposed use of ..., the possibility of summary judgment, the use of control of the discovery process, and the possibility of using alternative dispute resolution techniques. Other details of discovery...
- A number of major changes in procedure—including expanded joinder of parties and claims, virtually unlimited discovery, less informative pleadings, and increasingly complex and protracted litigation—have created a need for increased judicial intervention in the development of cases prior to trial. In many jurisdictions the response has been the pretrial conference [see, e.g., Federal Rule 16].
- Over the years litigation has tended to become more and more complex, often involving large numbers of plaintiffs or defendants and a variety of difficult, interrelated factual issues. The management of complex actions has posed a great challenge to the courts, and the use of pretrial conferences has proved an effective method of coping with the problems. Indeed, in the Manual for Complex Litigation, drafted by a panel of federal judges assisted by prominent attorneys and law professors to suggest methods of handling protracted cases, the primary proposal is the use of a series of pretrial conferences and related procedures to keep litigation under control at all times.
- Courts vary considerably on how a pretrial conference should be conducted. Some judges prefer to hold conferences formally, in open court, perhaps with the clients present. Others handle conferences informally in chambers, sometimes without even a court reporter. The nature of the conference depends to a large extent on the judge’s personality and upon his or her view as to the primary goals to be achieved. If settlement is at stake, the conference will more likely be a tense affair, with the trial judge actively pushing each of the parties to give ground; when the conference is focused less on settlement, the atmosphere generally will be more relaxed.
- Courts vary as to whether the same judge who will conduct the trial should also handle the pretrial conference. There is an obvious advantage to having a single judge handle all aspects of a case, particularly a complex one; it is a waste of time and energy to have to educate a new judge as to intricate factual and legal problems merely to hold a meaningful pretrial conference. On the other hand, a single judge system has a substantial drawback. Attorneys at a pretrial conference will be reluctant to stand fast on legitimate positions with which the judge seems to disagree for fear that the judge will become angry with them and that this attitude will prove detrimental at the subsequent trial. Moreover, a judge, aware of this subtle coercion, will be reluctant to engage in frank discussions with attorneys regarding weaknesses in their cases for fear that his or her remarks will be misinterpreted. These problems do not exist when the pretrial judge will not preside at trial.
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Chapter VII. Counterclaims, Cross–Claims, and Third–Party Claims 74 results (showing 5 best matches)
- The modern counterclaim is a direct descendant of two common law procedures—
- The material in this chapter deals with the special procedures for joinder of claims and parties by way of counterclaim, cross-claim, and third-party (or impleader) claim. These terms will be used throughout this discussion rather than the more generic and less precise term “cross-complaint.” The next chapter will discuss three additional joinder devices—class actions, intervention, and interpleader.
- The counterclaim was substituted for recoupment and set-off during the nineteenth century. Most state codes, however, limited the pleader to certain specified types of counterclaims. The most common types of counterclaims were those that arose out of the same transaction as did the plaintiff’s claim, for liquidated sums and for specified causes of action, such as contract or certain tort claims. The contemporary counterclaim provision, typified by Federal Rule 13, does not limit the nature or the subject matter of the counterclaim in any way and permits the defendant to recover any relief to which he or she is entitled regardless of the disposition of the plaintiff’s claim.
- Third-party claims are asserted only against persons who are not already parties to the litigation. Counterclaims and cross-claims are the proper procedures to be invoked against those who already are parties to the action.
- A brings an action against B and C. B then asserts a claim against D, who is added as a party to the action. Most jurisdictions would conclude that this is not a proper cross-claim since a cross-claim may be asserted only between parties on the same litigation level—that is, only between B and C. Because D is not on the same level of litigation as B and C, no cross-claim may be asserted between B and D or C and D. These claims might be proper third-party or impleader claims, however [see
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Chapter XVI. The Doctrines of Former Adjudication 168 results (showing 5 best matches)
- Because of the different burdens of proof applicable to criminal and civil proceedings, there are special rules governing the issue preclusion effect of issues decided in a criminal suit that also are involved in civil litigation. since the failure to prove defendant’s guilt beyond a reasonable doubt does not preclude the possibility that civil liability can be established when the standard is only a preponderance of the evidence.
- One of the principles underlying the requirement that the determination of an issue be necessary to the result is the idea that a party should not be permanently estopped on an issue without an opportunity to have appellate review of the trial court’s decision on it. A party who has prevailed at the trial typically cannot seek review of an issue that was decided against him. For this reason, the necessary determination rule denies issue preclusive effect to issues decided against the successful party in the first action.
- A judgment in a minor case involving a small sum often will not be accorded issue preclusive effect, particularly if the subsequent action involves far more significant issues and amounts.
- One test, proposed by New York Court of Appeals Judge (later Justice) Cardozo, is that a claim is precluded by res judicata when “the substance of the rights or interests established in the first action will be destroyed or impaired by the prosecution of the second” [ (NY 1929)]. This test can be criticized as begging the question, since the very problem in applying claim preclusion is determining whether a later action would undo a prior judgment or whether it merely would allow the award of relief on a separate cause of action. However, the Cardozo formulation does focus attention on whether the claim preclusion policy favoring stability of judgments is offended by allowing a second suit.
- When a limited appearance is made in a quasi in rem action, the issues relating to the merits of the dispute often are actually litigated and necessarily determined. Nonetheless, . To do so would negate the purpose of the limited appearance procedure, which is to permit the defendant to enter the jurisdiction to protect his or her interests in the res that was attached without actually submitting to the court’s general personal jurisdiction. [See for a discussion of the limited appearance.] There has been some erosion in this limitation on the application of issue preclusion in recent years.
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Chapter VI. Joinder of Parties and Joinder of Claims 103 results (showing 5 best matches)
- As amended in 1990, 28 USC 1367 confers supplemental jurisdiction over claims and parties joined to a civil action that is based on federal question jurisdiction. In diversity cases, however, the court does not have supplemental jurisdiction over claims by plaintiffs against non-diverse persons made parties under Rules 19 and 20, or over non-diverse parties joined as plaintiffs under Rule 19. The usual rules of diversity jurisdiction apply, and aggregation of claims ordinarily is permitted for purposes of satisfying the jurisdictional amount only if the parties on one side have a common undivided interest [see
- In light of data indicating that defendants are more likely to win in cases in which issues of liability and damages are handled in different trials, a question has been raised as to the constitutionality of this practice under the jury trial guarantee. Many writers have spoken of the wisdom of allowing the jury to do overall justice in a case. This concern led the Advisory Committee on the Federal Rules to warn that the separation of liability and damages issues should be used only in cases in which the procedure has a demonstrated usefulness.
- The real-party-in-interest principles applicable to assignments also govern subrogation. Thus, if a subrogee has paid the subrogor the amount to which the latter is entitled, the subrogee must sue in its own name. If, however, the subrogee succeeds to only part of the subrogor’s rights, as, for example, by paying only part of the sum to which the subrogor is entitled, both subrogor and subrogee are real parties in interest.
- Insurance companies often will use a device known as a loan receipt to avoid the necessity of suing in their own names and thereby avoid the possibility of jury prejudice against them. Instead of paying the insured’s losses, the insurer lends a comparable sum of money to the insured who must repay the loan in an amount not exceeding the recovery from the defendant. If it appears that the transaction is a bona fide loan and not merely designed to keep the insurer’s name out of the litigation, the defendant may not insist that the insurer be named as a plaintiff.
- Modern procedural systems provide three devices to deal with claims and parties that either should have been joined in a single action, should not be adjudicated together, or should not be tried jointly. These devices are orders of consolidation, orders of severance, and orders of separate trial. In deciding whether to use any of these procedures, the court will consider the convenience of the parties, the need to do justice for each litigant, and the desire to maximize judicial economy.
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Chapter XIII. Selecting a Trier of Fact 106 results (showing 5 best matches)
- A unanimous verdict, like a twelve-person jury, was considered an essential element of the common law trial by jury, and this principle continues to apply in federal civil cases. Thus, under the Federal Rule 48, a verdict must be unanimous unless the parties otherwise agree. In a number of states, however, something less than a unanimous verdict is binding in civil proceedings, typically two-thirds or three-fourths of the jurors. [The advantages of not requiring unanimity are discussed in .] When less than unanimity is required, the same individual jurors must agree on all the issues in the case.
- The United States sues D, a real estate developer, for dumping waste on wetlands in violation of the Clean Water Act. The government seeks an injunction against D as well as the imposition of the maximum civil penalties allowable under the Act. D requests a jury trial. The civil penalties are a legal, rather than an equitable, form of relief. D’s request will be granted, even though the government also seeks equitable relief [
- The jury is supposed to represent a randomly selected cross-section of the community. To achieve this objective, courts have developed various procedures for assembling lists of potential jurors from various registers such as voting lists, property tax records, telephone directories or by compiling names referred by individuals known for their sense of civic responsibility (although the legitimacy of this procedure is doubtful). Certain groups are sometimes exempted from jury duty such as lawyers, members of the armed forces, police and fire department personnel, public officers, and those who live outside the geographic area of the court. An exemption will not apply unless it is claimed by the individual when called to serve.
- P, a black woman, brings an action under the Civil Rights Act of 1968 alleging that D, a white landlord, refused to rent an apartment to her in violation of the Act. The statute authorizes the courts to award both actual and punitive damages as well as injunctive relief but does not expressly provide a right to a jury trial. Because the plaintiff seeks actual and punitive damages (relief traditionally offered by courts of law), as well as injunctive relief, and the cause of action is one to enforce legal rights analogous to rights known at common law, either party is entitled to a jury trial [
- The Seventh Amendment has not been applied to the states through the Fourteenth Amendment, and thus there is no federal constitutional mandate compelling the states to provide a right to a jury trial in civil cases.
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Chapter XII. The Trial Process 26 results (showing 5 best matches)
- Even though a party meets its burden of production on an issue, that party will not necessarily prevail on the issue. It then becomes a matter for the trier of fact who not only must evaluate the evidence presented by the party with the burden of production, but must weigh it in light of the evidence presented by the opposing party. The decision is made on the basis of whether the party with the burden of persuasion has met that burden. In the
- Even though none of the specific exclusionary rules apply, evidence still may be rejected at the discretion of the court when its value is overshadowed by the prejudicial effect it may have on the trier of fact. For example, in a civil fraud action in which a major issue is whether the defendant was married, evidence that he was found guilty of wife abuse will be excluded if there is any other means of proving marital status.
- P sues D for a large sum, alleging debilitating personal injuries. D intends to introduce into evidence recent movies showing P engaging in a variety of physically demanding athletic activities. D’s counsel is likely to wait until after P’s case is completed to make her opening statement informing the jury about this evidence.
- Once the pleadings are completed, any party may move to set the case for trial. Except in special circumstances, in which certain types of matters are given priority, cases are placed on an appropriate and scheduled for trial in the order that the motions are heard. Different courts maintain different types of trial calendars, often depending upon the nature of the case. In many jurisdictions jury trial cases are placed on one calendar, non-jury cases on another, and a specific number of judges are assigned to each calendar. This often means that non-jury cases are brought to trial much faster than jury actions. In some places the assigned trial date in jury cases may be years in the future. Obviously, a court cannot predict exactly when it will be ready to try a case. Thus, when the assigned trial date nears, the court will periodically inform the lawyers of the state of the calendar and the likelihood of delay. In setting a precise date, the court must take into consideration the...
- When a party has a choice between a trial by jury or before the judge, a number of factors are considered. A jury trial is costly and increases the financial gamble for a party uncertain of success; a party who loses normally is required to pay the standard daily fees of the jurors plus a mileage allowance for travel to and from their homes and money for their meals. Furthermore, a party usually must wait considerably longer to get to a trial by jury than to get a trial by the court. Finally, a jury trial requires a special degree of showmanship and psychological sophistication on the part of the trial attorney. On the other hand, a jury decision may be preferable in that it is the product of a consensus of lay people, not the determination of a single judge whose particular philosophy may dictate the result. Moreover, a jury, unlike a judge, will be less likely to indulge in “legalisms.” Thus, jurors are more likely to decide the case on an overall notion of fairness than to rely
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Unit One. Jurisdiction and Governing Law 3 results
- Publication Date: July 9th, 2008
- ISBN: 9780314191175
- Subject: Civil Procedure
- Series: Quick Reviews
- Type: Outlines
- Description: This book provides a comprehensive analysis of civil procedure, convenient for class or exam preparation. It provides clear and concise explanations of legal concepts and terms, along with exam hints, strategies, mnemonics, charts, tables, and study tips. It includes self-testing and diagnostic review questions and case squibs, which are capsule summaries of significant cases identifying important facts, primary issues, and relevant law. It also provides a casebook table, which keys to relevant pages of leading casebooks, and numerous essay and multiple-choice questions with model answers and detailed explanations. A study guide offers suggestions for the critical hours before an exam.
