Choosing a System of Procedure
I. Models of judging
a. American
i. “Courts must not only be impartial; they must give the appearance of impartiality.”
1. Band’s Refuse Removal, Inc. v. Borough of Fair Lawn (p.3) – trial judge was prejudiced against (D) and overstepped his bounds to be objective.
a. Judges cannot use their power to act as an advocate or in the interest of either of the litigants.
b. Judges CAN shape cases to certain degrees, but these opportunities should be strictly limited.
ii. See p.12 – requirements for judges
b. Continental
i. Courts are more involved in and advance the proceedings and conducts the hearings at the trial.
ii. The judge can be likened to the director of a play.
II. Rule 16 – authorizes the district court to convene pretrial conferences with the purpose of processing a case efficiently
a. 16(c)(9) – designed to encourage pretrial settlement discussion, not to “impose settlement negotiations on unwilling litigants”
b. 16(f): sanctions – purpose is to maximize efficiency, not force people into settlements
i. Koethe v. Smith (p.18) – judge imposed a penalty on (D) for delaying the settlement by settling for the offer that (P) would have settled for during settlement conference after the trial started
1. Judges cannot effect settlements through coercion or pressure tactics
2. Judges must not compel agreement by arbitrary use of power
III. Procedural complications of our federal system
a. Subject matter jurisdiction
i. Federal question – (P) is asserting a claim created by federal law
ii. Diversity of citizenship – Federal courts have jurisdiction of cases in which all (P)s come from different states than (D)s
1. & requires more than $75K value
b. Personal jurisdiction – whether (D) can be compelled to travel to the geographical location chosen by (P) for the suit. Yes, if (D) has voluntarily established a contact with the state in which the court sits.
c. Federal v. state law – federal judges apply state substantive law and federal procedure law
Rewards and Costs of Litigation
I. Prejudgment Seizure – a form of interim relief; a set of procedures that provide relief for a temporary period before the trial begins
a. 14th Amendment- “no state shall deprive of equal protection of life, liberty, property without due process of law”
i. Due process should be applied objectively
ii. Due process requires the following elements: pleading (specificity of plea), hearing (supposed to happen before seizure, unless exigent circumstances), bond (seeker of the writ ensures the seriousness pending disposition), notice (adequate notice), officer (authority to process the writ)
iii. Prejudgment replevin statutes must comply with procedural due process
1. Fuentes v. Shevin (p.29)** – (D) instituted an action for repossession and obtained a writ of replevin to seize the goods even before (P) had received a summons to answer the complaint
a. There must be sufficient notice given before something is seized; “meaningful time in a meaningful manner”
b. Fuentes is no longer the majority.
iv. Narrow rules, exigent circumstances, and promptly posted notice can go around Fuentes
1. Mitchell v. W.T. Grant Co. (p.42)** – Judge signed order of sequestration and directed a constable to take poss
. private interest, risk of erroneous deprivation (safeguards), govt. interest
II. Post Judgment Remedies
a. Actual money damages
i. Nominal damages should be awarded if there is no proof of injury.
1. Carey v. Piphus (p.68)** – (P) was suspended from school without a chance to respond and brought an action for the deprivation of due process
a. The injury here was not really evident… perhaps it was just the suspension.
ii. Substantial, compensatory damages should be awarded if there is proof of actual injury.
iii. Punitive or exemplary damages should be awarded if there is proof of malicious deprivation of rights
b. Equitable relief (ex. an injunction, restraining order, specific performance) – that which remedies when the “remedy at law” is inadequate
i. Can be preliminary or permanent
1. criteria for preliminary injunction
a. if there is no remedy at law
b. has a strong likelihood of success on the merits
c. irreparable harm should preliminary relief be denied
d. balance of hardships favors (P)
e. issuing the injunction will advance the public interest
2. criteria for permanent injunction
a. same as above, plus one can practically administer the injunction
Smith v. Western (p.86) – (P) was a nonsmoker that worked in a smoking environment and was ignored by his company repeatedly
