Civil Procedure I Janssen Fall 2014
Reminder #1 à What is “civil” law?
Civil Law
Criminal Law
Ø Regulating: private interests
Ø Goal: compensation for a loss
Ø Remedies: money, injunction
Ø Proof Standard: “preponderance of the evidence”/“clear and convincing”
Ø Regulating: public behavior
Ø Goal: punishment/deterrence
Ø Remedies: fine, prison, death
Ø Proof standard: “beyond a reasonable doubt”
Reminder #2 àWhy are there two court systems, a state one and a federal one?
· 1 Federal government/ 13 state governments
· US Constitution
o Supremacy Clause
§ Article VI: “The constitution, and the Laws of the US which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the US, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary nothwithstanding.”
o 10th Amendment
§ “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.”
Reminder #3àwhat distinguishes a “trial” court from an “appeals” court?
TRIAL courts
APPELLATE courts
· 1 judge; jury maybe
· Hear evidence
· Resolve fact questions
· Apply law to facts
· Panel of judges
· Do NOT hear evidence
· Do NOT resolve facts
· Check whether trial court committed an “error”
Federal Court System
U.S. Constitution-Art. III: “The judicial power of the US, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time establish”
· Highest Court (Court of last resort)àUS Supreme Court
o Only federal court expressly created by US Constitution
o Nine Justices
o Begin 1st Monday each October
o No “Right” of appeal
o Instead, “Writ of Certiorari”:
§ Resolve “splits” among federal courts
§ Resolve nationally important legal issue
o Is a trial court, for disputes between states
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· Intermediate Appellate Courts àUS Court of Appeals
o Nation divided into circuits
o Circuits encompass all of the districts within a certain set of different states
o 11 geographic circuits (first circuit, second circuit, etc.)
o District of Columbia circuit
o Federal circuit
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· Trial Courts àUS District Court
o Nation divided into “districts”
o No district reaches outside a single state
o Larger, more populous states have several districts
o Territorial districts: P.R., Virgin Islands, Guam, N.M.I.
State Court System
· Highest Court (Court of last resort): àSouth Carolina Supreme Court
o (Except in N.Y., MD it is the “Court of Appeals”
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· Intermediate Appellate Courts à SC Court of Appeals
o Does not exist in all States (W.Va); sometimes “Court of Errors and Corrections”
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· Trial Courts àCircuit court for Charleston County
o In other states, called “common pleas”, “district”, “supreme” court (NY)
Reminder #4à”Sources of law”
· Main sources of legal authority
1. Constitutions
a. US Constitution
i. Designs legal order for society
ii. Highest form of law in US
iii. What it does:
1. Creates and assigns powers to the federal government (3 branches: legislative, executive, judicial)
2. Authorizes inter-state regulation
3. Preserves to the states all other powers
4. Amended with Bill of Rights, and enshrines other key rights of citizenship.
iv. “Constitutional Law”
1. Law or practice could be found to be “unconstitutional”, which means…
v. The Constitution is separated into:
1. Articles
2. Amendments
b. State Constitutions
i. Highest form of state law
ii. Create the form of local government system for each state
2. Statutes
a. Enacted by legislators
i. Written by peoples’ representatives from each state
1. Examples: Clean Water Act, Civil Rights Act, Food, Drug, and Cosmetics Act
b. Legislative authority is created by the Constitution
i. And, thus, legislatures may only act within the power granted by the Constitution (otherwise its laws are “unconstitutional”)
c. “Statutory law”
i. Federal Statutory law is collected in a compendium called “United States Code”
1. Which is separated into:
a. Titles
b. Sections
3. Court Rules
a. Prepared by each court system, and used to set the procedures for the use of those states’ courts
i. “federal rules of civil procedure”
ii. “federal rules of evidence”
iii. “SC Rules of Civil Procedure”
n Jay (S.C. Justice): Jay say that his ability as a justice would be compromised if he gave advice on the matter.
· The situation above gives us 4 things a dispute must have (Justiciability Concepts: MUST have all 4 elements)
1. Actual case or controversy
a. not hypothetical, abstract or advisory but rather concrete and definite
2. Standing
a. has an actual stake int eh outcome she has or imminently will suffer an actual injury, traceable to conduct by the D and capable of being redressed by the court
b. have to be hurt
3. Dispute is “ripe”
a. Must rest upon current events not speculate future ones and not moot
b. Can’t sue early, must wait until actual injury occurs
4. Not “Moot”
a. Injury must stay
b. Dispute is still live ensuring events have not rendered the dispute merely academic
Consultation (2nd step in civ. Pro.)
· Core Concepts:
o Solicitation of new clients – no in person, live telephone or real time electronic contact to solicit legal work when significant motive for contact is lawyers pecuniary gain unless……. Listener is a lawyer or listener has a family , close personal or prior profess relationship with the speaker
§ The logic is to deter lawyers from taking advantage of people. Exceptions are people are unlikely to be effected by the solicitation like family or friends.
o Creating a relationship – the scope of the representation and the fee shall be communicated to the client preferably in writing either before or within a reasonable time after commencing the representation
§ Contingent fee arrangements, are they ethical? We must properly disclose the info for this, not fool the client.
o Attorney client privilege- unless client gives information consent or the law otherwise permits it a lawyer shall not reveal information relating to representation of a client
o Fact Gathering mission- a lawyer shall provide “competent representation to a client requiring inquiry into (and analysis of the law). There is a mandatory duty to be prepared.
