A Short & Happy Guide to Civil Procedure
Author:
Freer, Richard D.
Edition:
2nd
Copyright Date:
2019
18 chapters
have results for short and happy civil procedure
Copyright Page 2 results
- a short & happy guide
- The publisher is 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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Chapter 1. The Study of Civil Procedure 40 results (showing 5 best matches)
- In “substantive” courses like Contracts, Torts, and Property, you learn the rules by which society lives. You learn about the rights that one may enforce through litigation. In Civil Procedure, we learn the means that we use the same procedure for all cases, whether P is seeking to enforce rights recognized by the law of contract, tort, property, or other substantive law. If you are going to be a civil litigator, Civil Procedure may be the most important real-world course in your first year of law school. Even if you plan to be a transactional lawyer, knowledge of Civil Procedure is helpful, because it allows you to understand how your clients’ rights may be vindicated through litigation if the transaction you set up results in a dispute.
- Each state has its own court system, and is free to set it up as it sees fit. In addition, there is a separate federal court system. So there are 51 separate court systems in this country (actually more than that, because federal enclaves such as the District of Columbia and Puerto Rico have local court systems as well). Throughout the book, we will occasionally refer to practice in state courts, but will focus (as your course will focus) on the federal judicial system and the Federal Rules of Civil Procedure, which apply in federal court. We will refer to specific provisions of the Federal Rules of Civil Procedure as “Rule” or “FRCP.”
- Civil Procedure offers a remarkable mix of types of material. Some of the things we study are mechanical; the rules are clear and usually yield a definite answer. But other parts of the course are amorphous; the courts have given us some factors to apply but it is sometimes not clear how the factors should be approached or weighted.
- Before P even files the case, her lawyer must select an appropriate court in which to sue. “Forum selection” implicates three major units of the Civil Procedure course: personal jurisdiction, subject matter jurisdiction, and venue (respectively, Chapters 2, 4, and 5 of this book). Once the case is filed, D may contest P’s selection of forum by making a motion to dismiss or perhaps to transfer. The parties will then argue the matter in written briefs, and the court will rule on whether it is a proper forum to decide the case.
- In the Introduction chapter, we noted that there are two main categories of lawyers: those who do “transactional” work and those who litigate. Civil Procedure is about litigation. Litigation is a publicly-funded method for resolving disputes. It is where we “go to court” to resolve a dispute. Our course is concerned with civil litigation, as opposed to In a civil case, the plaintiff (P) sues the defendant (D) to seek recovery for harm inflicted on her by D. Often, P sues for —that is, money to compensate P for the harm. For example, in a tort case, P will often sue to recover for medical expenses and for pain and suffering caused by D’s action. In a contract case, P will often sue to recover the expenses incurred because D failed to do what she agreed to do. Sometimes the remedy is not monetary. For instance, P may want the court to issue an injunction forbidding D from trespassing on her property. An injunction is a court order commanding D either to do something or to refrain...
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Introduction. Why and How Law School Is Different from College 19 results (showing 5 best matches)
- Welcome to law school and welcome to Civil Procedure! Law school is exciting and intellectually stimulating. As you start your legal career, it is helpful to understand why and how law school is different from college. Your goal here—your “job” as a law student—is different from what it was in college.
- Law school is different. Yes—you must know the material. In Civil Procedure, for instance, you must know the difference between and jurisdiction and many other things. (The goal of this book is to help you learn those things.) But in law school you will not be assessed directly on whether you know these things. Instead, you will be assessed on how well you the legal doctrine to solve a problem raised by a fact pattern. The Civil Procedure exam will not ask “what is the difference between and jurisdiction and the consequences of that distinction.
- For example, you will learn the law of Torts not by discussing a text that synthesizes the cases and tells you “the elements of the tort of battery are X, Y, and Z.” Instead, you will study the opinions in which the courts determined that the elements of battery are X, Y, and Z. In Civil Procedure, you will learn what supplemental jurisdiction is not because some text tells you but because you will study statutory language and judicial opinions interpreting that language.
- As we will discuss further in Chapter 1, § B, Civil Procedure concerns litigation. There is a dispute and someone may sue your client, usually to seek compensation for harm allegedly inflicted by the client. The important point for us now, however, is that no matter what kind of lawyer you will be (transactional or litigation), law school is different from college; you are being educated and trained to use doctrine to solve problems.
- More to the point, though, there is a great deal you can do to be ready for exams. Throughout this book, we have pointers geared toward getting you ready for the Civil Procedure exam. One such pointer is in Chapter 2, § E, where we lay out an analytical approach that will handle any personal jurisdiction essay question.
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Chapter 8. Appellate Review 15 results (showing 5 best matches)
- Most of what we study in Civil Procedure takes place in a trial court, such as the federal district court. In Chapter 1, § C, we discussed the three-tiered model adopted in the federal (and many state) judicial systems. We focus on the federal system, and on appeals from district court to the United States Court of Appeals. There is no federal constitutional right to appeal in civil cases. As we will see, though, Congress has provided a statutory right to appeal at least some decisions of federal district courts to the appropriate federal court of appeals.
- : After two years of litigation and trial, P wins a jury verdict and judgment of $500,000. The court then grants D’s motion for new trial, which means that P loses her judgment and must start over with a new trial. Can P appeal the grant of new trial as a final judgment?
- : P sued two defendants, D-1 and D-2, in one suit. While it was clear that the district court had diversity of citizenship jurisdiction over the claim by P against D-1, there was no diversity or federal question jurisdiction over the claim against D-2. (This case arose before the supplemental jurisdiction statute was passed and resolved the issue.) The district court ruled that it has supplemental jurisdiction but realized that this was a difficult question of law (the courts of appeals had split on it). So it certified the issue under § 1292(b) and the court of appeals agreed to hear the matter.
- Yes. The first three requirements are clearly met: the issue of immunity from suit (1) is legally significant, (2) has nothing to do with the merits of the underlying dispute (whether D breached the contract), and (3) has been decided finally by the district court. And this is one of the few cases in which the fourth requirement can be met. Why? If TA cannot appeal until final judgment, it will be robbed of immunity . Remember, the Eleventh Amendment protects states (and “arms” of states) from being sued at all. If TA must go through litigation in the meantime, it will
- Recall from Chapter 1 that appellate courts do not re-try cases. There is no jury or fact-finding because there is no presentation of evidence. Instead, the appellate court reviews the case “on the record,” looking at the pleadings, motions, orders, judgment, and, if there is one, the trial transcript. The appellate court considers the arguments made by counsel for the parties, both in written briefs and, often, in oral argument.
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Chapter 7. Adjudication (With or Without Trial) 51 results (showing 5 best matches)
- In 1791 in England, there were two systems of civil justice: courts at common law and courts of equity. This bifurcation was long followed in every state and in the federal courts in this country. Over time, however, most American systems evolved to have one set of trial courts, but with a “law side” and an “equity side.” These “sides” had different procedural rules and different terminology. The federal courts finally abolished separate procedures and terminology for law and equity in 1938, with the adoption of the FRCP. Now, in federal court, there is only one type of case, the “civil action.” This is true in most states as well.
- New trials are expensive for the parties and for the court. Sometimes courts will try to induce the parties to avoid going through a new trial. In Example #7, the court could suggest “remittitur,” which says to P, essentially: “either you take a lower figure (say, $20,000), or I will order new trial.” The implicit message is that P might not win anything at the new trial, so she should take the lesser figure and be happy. The court has no authority to set a new damages figure, so P is not required to accept. She can reject remittitur and take her chance with the new trial.
- We focus on the Seventh Amendment, which addresses jury trials in civil cases. The Seventh Amendment applies only to civil cases in federal court. It does not apply in state courts. Nonetheless, most states guarantee the right to jury in civil cases, usually along lines similar to those discussed here under the Seventh Amendment.
- Now, back to today. Under the Seventh Amendment, one gets a jury in a federal civil case if the case would have been brought at common law in England in 1791. To figure that out, the Supreme .) First, the judge must determine whether P’s substantive claim had an analog in the common law of 1791. This is a daunting question, because many claims we take for granted today (like strict liability and negligent infliction of emotional distress) were not recognized in 1791. Moreover, judges are not legal historians and do not feel comfortable making this assessment. Even the Supreme Court seemed to take a half-hearted stab at this part of the test, and find some ancient common law writ that would have come close to the present claim. Over time, the Court has allowed this first requirement to fade into near meaninglessness.
- The Seventh Amendment uses curious language to bestow the right to jury trial. First, it does not “create” or “grant” the right. Rather, it says that the right shall be “preserved.” Second, it does not preserve the right in all cases, but only in “[s]uits at common law.” Because the right is “preserved,” the Supreme Court has long held that the question is whether P would have had a right to a jury in 1791, because that is when the Seventh Amendment was ratified. Moreover, the question is whether one would have had a jury right in 1791 “at common law”—and that means pursuant to the common law of England. So whether one has a right to trial by jury in federal civil cases in the twenty-first century depends upon whether one would have had the right in 1791 at common law in England.
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Chapter 11. Erie 35 results (showing 5 best matches)
- , the most difficult topic in Civil Procedure. The Supreme Court has not provided consistent guidance regarding more than most, is subject to varying interpretation by courts and professors.
- Three, what about the “twin aims?” If the federal judge ignores this state law, it will cause every P who can do so to go to federal court. (Every P will want to avoid arbitration and go to a jury directly.) This, in turn, leads to the inequitable administration of law, because citizens of State X cannot go to federal court. When they sue a State X doctor, they cannot invoke diversity jurisdiction, so they will be stuck in state court and stuck with the arbitration procedure. So, to avoid forum shopping and this unfairness to the people of State X, the federal judge should follow state law.
- The labels “substantive” and “procedural” are not very helpful, because many things (like statutes of limitations and burdens of proof) can be characterized as either. So “substance versus procedure” cannot be “the test.” The problem is that through the decades the Court has used several “tests” in trying to determine when federal courts are required to apply state law in diversity cases. The three main tests come from three famous cases. The Court has never told us how to integrate these tests—or, indeed, if they are all relevant today. Many professors have their own theories on how the tests should be used.
- : The legislature of State X concludes that medical costs are too high, and that one reason is excessive medical malpractice litigation. It passes a law that requires medical malpractice cases to be arbitrated. Arbitration is an alternative to court litigation, with no jury and very limited discovery. The statute provides that an arbitration panel of three doctors and lawyers will hear the malpractice case and render a decision. (Ps do not like this, because of a widespread sense that juries award higher damages than such arbitration panels.) After the arbitration, P has the right to go through the regular litigation stream, including jury trial, though the jury will be informed of the arbitration decision. (Ps do not like this either, because they fear that the jury will defer excessively to the arbitration decision.) A citizen of State Y visits State X and goes to a doctor. She claims that the doctor committed malpractice, and sues in federal court in State X, invoking diversity...
- , then, federal judges in diversity cases could ignore state-court general common law and were free to make up what they thought was the best version of the common law of contracts, torts, and property. Their version would apply in the cases they decided, but would not bind state courts. This led to significant trouble.
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Chapter 4. Subject Matter Jurisdiction 69 results (showing 5 best matches)
- This is a statute passed by Congress, in Title 28 of the United States Code. It is not a Federal Rule of Civil Procedure. Those are promulgated by the Supreme Court.
- The Court has held that state-created claims can invoke federal question jurisdiction when they raise a substantial federal issue and when allowing federal jurisdiction would not upset the allocation of judicial power between the federal and state governments. . Such cases raise what the Court has called a “centrality” requirement: that federal question jurisdiction exists over state-law claims if the federal issue is sufficiently central to the dispute. This is a “slim” category of cases, and the law concerning it is confused. (“In outlining the contours of this slim category, we do not paint on a blank canvas. Unfortunately, the canvas looks like one that Jackson Pollock got to first.”). Many first-year Civil Procedure courses probably do not cover centrality, but all likely cover the well-pleaded complaint rule.
- Acme is an unincorporated business. It takes on the citizenships of all its members. The members are Joe, who is a citizen of Arizona and Joe Corp., which is a citizen of Texas and a citizen of Idaho. Therefore, Acme LLC is a citizen of Arizona, Texas, and Idaho. Remember, the state of formation and the state of PPB are irrelevant for unincorporated businesses like Acme LLC.
- Federal courts, in contrast, have “limited” subject matter jurisdiction. They can hear only limited types of cases. This fact flows from the Constitution. In that document, the states and the people of the United States ceded certain powers to the federal government. The federal government has only specified limited powers, and may not act beyond those.
- This limitation applies to the federal judiciary as well as to the federal legislature and the federal executive branches. Article III of the Constitution sets the outer boundary of cases that can be heard in federal courts. Generally, however, the subject matter jurisdiction of Article III is not self-executing. Congress must pass a statute granting subject matter jurisdiction to the federal courts. Without a grant from Article III and a jurisdictional statute, the federal courts generally cannot hear a case. The two major grants of federal subject matter jurisdiction are (1) diversity of citizenship and (2) federal question.
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Table of Contents 20 results (showing 5 best matches)
Chapter 6. Pretrial Litigation 66 results (showing 5 best matches)
- American civil litigation remains adversarial. But there is no question that American courts are increasingly “hands on” in overseeing progress and cajoling the parties to keep cases moving (and to consider the advantages of settlement).
- FRCP 26(a) requires each party to give information to the other parties at three points in the litigation—and to do so . The three types of mandatory disclosure are found in Rule 26(a)(1), 26(a)(2), and 26(a)(3). Obviously, these rules apply to federal civil cases; states are free to do as they please, and very few have shown any interest in required disclosures.
- Usually, the focus will be on the requirement of Rule 8(a)(2), that P make a “short and plain statement of the claim, showing that [she] is entitled to relief.” There is no sense burdening D to engage in further litigation (such as filing an answer and producing materials in discovery) if P cannot allege a claim. D raises the issue by filing a motion to dismiss for failure to state a claim under Rule 12(b)(6)(in some states this function is performed by a “demurrer”). The court then assesses whether the complaint is and sufficient. It does so based solely on what P alleged. The court does not consider evidence. The court asks, basically, “if the facts P alleges were true, would P win a judgment?” If the answer is no, the case fails to get past the “pleading stage” and does not belong in the litigation stream.
- The Federal Rules, promulgated in 1938, ushered in a new approach. The goal of Rule 8(a)(2) was to lower the pleading barrier, to make it easier to get into the litigation stream. The drafters consciously avoided the word “facts,” because it implied a need for detail. The provision requires a “short and plain statement of the claim, showing that [P] is entitled to relief.” The Supreme Court explained in early cases that P need merely plead only enough factual detail to inform D of what she was being sued for. Federal pleading came to be known as “notice pleading,” because the goal was to put D on notice of the claim against her.
- Over the years, most states rejected “code pleading” and adopted the Federal Rules “notice pleading” system. But this system, some argued, made it too easy for Ps to get past the pleading stage and to subject Ds to the burdens and expense of discovery. Some lower federal courts tried to impose “heightened” pleading requirements, at least in some types of cases. The Supreme Court rejected these efforts and stuck with Rule 8(a)(2).
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Chapter 2. Personal Jurisdiction 99 results (showing 5 best matches)
- Remember: even though these statutes are passed by state legislatures and thus apply in state courts, the federal courts apply them as well. Under FRCP 4(k)(1)(A), in the ordinary civil case, federal courts can exercise personal jurisdiction only if a state court in the state in which they sit could exercise personal jurisdiction. So even though the case may be in federal court in Virginia, the Virginia statutes on personal jurisdiction will apply. If a statutory basis for personal jurisdiction is arguably satisfied, then proceed to assess whether the exercise of jurisdiction would be constitutional.
- and concluded that the British corporation, by selling to the Ohio company and directing it to sell machines throughout the United States, could anticipate that its machines would get to New Jersey and that it would be sued there. The British company had targeted the entire United States, and the three dissenters concluded that it has a relevant contact with any state into which its machines were sold and injured someone.
- and ) and type 2 ( and and , we use property as the jurisdictional predicate and the point of the litigation is to determine who owns that very property.
- It would make sense for state legislatures to combine their nonresident motorist statutes with their long-arm statutes into one provision dealing with jurisdiction over non-residents. Generally, they have not done so, apparently because the two were passed at different times. Motorist statutes generally were passed in the 1920s and 1930s and, as we saw in , were based upon implied consent. Long-arms were passed in the 1940s and 1950s and were based upon the contacts and fairness rationale of
- : D is a lifelong citizen and resident of State X. He is sued in State X and D is properly served with process in State X. There is no question that the exercise of jurisdiction over D in State X would be constitutional. But the courts of State X (and the federal courts in State X) do not have jurisdiction unless State X has a statute the permits jurisdiction.
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Chapter 3. Notice and Opportunity to Be Heard 15 results (showing 5 best matches)
- . There, the Court held that notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” This phrase clearly requires that a court employ some procedure that will (1) apprise D of the case and (2) provide D with a chance to defend. In the usual case, as noted, these functions are satisfied by service (delivery) of process (documents notifying D and instructing D how she may defend). Service of process that complies with the provisions we discuss in § C will be constitutional.
- Process consists of two documents: (1) the summons and (2) a copy of the complaint. The summons is issued by the court, and informs D that she has been sued, that she must respond within 21 days of service of process (or risk default), and gives information about the court and the case (see FRCP 4(a)(1)). The fact that the court issues the summons drives home the point that service of process is a governmental act. It is easy to get the summons. After filing suit, P will print out a form summons from online, fill in the names of the parties and other facts, and present the summons to the clerk of court. It becomes effective when the clerk of the court signs it and affixes the court’s seal; at that point, it is a court order.
- The complaint is the pleading filed by P that states P’s claims against D (Chapter 6, § B). Together, then, the summons and a copy of the complaint (1) give D notice of the proceeding and why she has been sued and (2) tell her how, when, and where to respond to proceed through the litigation process.
- FRCP 4(e)(2)(B)) are very strict: (1) this must be accomplished at D’s dwelling or usual abode, (2) process must be left with someone of “suitable age and discretion,” and (3) that person must reside there. There are many possibilities here for the exam:
- Suppose process is delivered (at D’s usual abode) to a 16-year-old honors student. Is that someone of suitable age and discretion? The Rule prescribes no specific age, and each case depends on its facts. Many cases uphold service on children in the mid-to-late teen years.
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Chapter 10. The Preclusion Doctrines 44 results (showing 5 best matches)
- A claimant risks claim preclusion only if she asserts the same claim twice. Jurisdictions adopt different definitions of what constitutes a “claim.” The trend is toward a broad, transactional definition. The result of a broader definition of claim is to force the claimant to “pack” more elements of relief into a single case. This packaging fosters efficiency, which is a major goal of modern procedure.
- : A and B, each driving her own car, collide and suffer personal injury and property damage. In Case 1, A sues B regarding the wreck. Judgment is entered. In Case 2, B sues A regarding the wreck. Is Case 2 dismissed under claim preclusion?
- : D drives her car recklessly and rams into a car owned and driven by P. P suffers personal injuries and
- Full faith and credit and related doctrines dictate that, as a general rule, the court in Case 2 employ the preclusion law of the judicial system that entered the judgment in Case 1. This rule makes sense: the law of the jurisdiction that entered the judgment should define the preclusive effect of that judgment. Thus, if Case 1 was in state court in Kansas and Case 2 is in state court in North Carolina, the North Carolina judge will look to Kansas law of claim and issue preclusion.
- Case 1 and Case 2 were brought by the same claimant against the same D, and
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Chapter 5. Venue, Transfer, and Forum Non Conveniens 32 results (showing 5 best matches)
- 28 U.S.C. § 1390(a) defines venue as the “geographic specification of the proper court or courts for the litigation of a civil action that is within the subject matter jurisdiction of the district courts. . . .”
- Venue in federal civil cases is governed entirely by statute.
- 28 U.S.C. § 1391(b). It governs venue in virtually every civil case filed initially in federal court,
- analysis. The moving party must convince the court that the other forum is “available and adequate.” It would be unfair to dismiss a case if there were no adequate judicial forum in the more convenient location. Ps often argue that courts in foreign countries are inadequate because they have not adopted cutting-edge tort theories and often do not permit recovery of punitive damages. Many do not permit recovery for things like pain and suffering and emotional distress. And few countries provide trial by jury.
- In the federal system, as noted, venue is keyed to federal districts. Congress has divided the federal trial courts into 94 districts. Many states comprise a single district, such as the District of Arizona and the District of South Carolina. Some states consist of two districts, some of three, and three states (California, Texas, and New York) have four federal districts. The districts have geographic names, such as the Northern District of Florida and the Middle District of Pennsylvania. Congress determines how many districts will be established in each state and what parts of the state are assigned to each district.
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Chapter 9. Defining the Scope of Litigation: Joinder of Claims and Parties 59 results (showing 5 best matches)
- : A and B are passengers in a taxicab driven by Glen. The cab collides with a car driven by Glenda. A and B are injured. May A and B join as co-Ps? May they join Glen and Glenda as co-Ds?
- Yes. A and B may join as co-Ps in a single case because their claims (1) arise from the same T/O and (2) raise at least one common question (who was at fault). They may sue both Glen and Glenda as co-Ds in a single case because the claims against those two (1) arise from the same T/O and (2) raise at least one common question.
- : You own 100 shares of stock in Ace Corp. Along comes your evil cousin (EC), who claims that he paid for half the stock and that you and he agreed that you would hold the 100 shares in your joint names. EC sues Ace Corp., asking the court to order that your stock be cancelled, and the 100 shares reissued in the joint name of you and EC. You are not a party to this case. Are you necessary?
- Impleader fosters efficiency. Without it, D would be required to litigate against P, and, if she lost, sue the insurance company in a second case to recover indemnification. With impleader, we get everything resolved in one case and D need not pay the judgment to P in the meantime. P’s claim against D and D’s right to indemnification are decided in one case.
- The case might have been structured with multiple Ps under Rule 20(a)(1). So P-1 and P-2, as co-Ps, might have sued D. P-1 and P-2 would be co-parties and a claim by one against the other would be a crossclaim. Crossclaims between co-Ps, however, are rare.
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- Publication Date: August 19th, 2019
- ISBN: 9781684672288
- Subject: Civil Procedure
- Series: Short & Happy Guides
- Type: Overviews
- Description: Of the first-year subjects, Civil Procedure is the most foreign to students’ experience. This book unlocks Civil Procedure by explaining doctrine and rules and placing them in context – showing what each doctrine is doing and how each doctrine relates to the others. It includes a chapter on how law school differs from college and what that means for class- and exam-preparation. It provides concrete analytical frameworks for resolving exam questions. And throughout, scores of examples allow you to apply the law to fact patterns.
