Civil Procedure Outline
Fall 2006
DUE PROCESS
Case:
Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972) pg. 64
Overturned by the S.Ct. because Florida and Penn. failed to observe Due Process.
Rule:
Procedural Due Process requires the following steps to be taken in the event of a seizure of property. (based on Fuentes)
They are entitled to a hearing (the Right to be Heard)
They are entitled to notice.
Note:
Issues to be balanced in a case involving seizure of property:
i. Interest of the Defendant (in this case the buyer or debtor)
ii. Interest of the Plaintiff (in this case the creditor)
iii. The interest of Dignity, Fairness and Justice.
iv. Accuracy of the proceedings (maintains the dignity of the Court).
v. The Cost to the System (in the form of increasing bureaucracy, court time, etc…)
Challenges:
Mitchell v. W.T. Grant –
a. Δ (Mitchell) has property seized due to non-payment w/o Hearing or Notice.
b. UPHELD BY S. Ct.
i. Seizure was ordered by Judge
ii. Sworn Affidavit (under penalty of perjury) by Π’s credit manager concerning sale and failure to pay.
iii. Affidavit showed “reason to believe that the Δ would encumber, alienate or otherwise dispose of the merchandise during the pendency of these proceedings.”
North Georgia Finishing v. Di-Chem –
a. OVERTURNED BY S. Ct.
i. Affidavit was filed by attorney, not by someone having personal knowledge of event.
ii. Writ was issued without judicial oversight.
iii. No provision for an early hearing.
Case:
Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L.Ed.2d 1 (1991) pg. 82
Overturned by S. Ct. because State authorized prejudgment attachment of real estate W/O
· Prior Notice
· Showing of extraordinary circumstances,
· The requirement of a bond by the person seeking the attachment
Mathew’s Test:
a. What are the
ed
The Costs of Litigation and the Costs of Lawyers
NOTE:
· American Rule:
o Attorney fees are allotted to each party regardless of the outcome with some exceptions:
1. Bad Faith cases brought before the court (hard to prove)
2. Public interest (courts may award fees)
· Utilizes the “loadstar” approach where the hours the attorney worked on the case is multiplied by the a reasonable hourly rate and then adjusted for time and likelihood to pay:
o Multiplier (hours x rate) = Loadstar Method
o Promotes settlements to avoid high litigation costs
o In the United States, the main public costs of litigation are:
1. Salaries of judges, clerical personnel, expenses of running court facilities, and fees for jurors.
o In the United States, the main private costs of litigation are:
1. Attorneys’ fees, expert witness fees, costs of hiring court reporters, and various other out of pocket expenses.
Contingent fees are percentage based off settlement or trial finding o allow indigent clients to seek legal counsel (usually between 25-33%, but potentially
