Civil Procedure – Fall 2014
Professor Finch
Preparing to Commence Suit
1. Governing Law
2. Client’s Goals
3. Possible Remedies? (R8(a)(3): P can seek multiple types of relief)
a. Compensatory Damages (economic, noneconomic)
b. Punitive Damages
c. Equitable Relief
d. Ancillary Relief
e. Costs
f. Attorney’s Fees
4. Alternatives to Litigation
a. Arbitration
b. Administrative Remedies
5. Cost of Litigation
a. Attorney’s Fees & Costs
i. American Rule- each side pays for their attorney
ii. “Pay As You Go”
iii. Costs are recoverable but narrowly defined
1. R54(d): prevailing party may recover “costs other than attorney’s fees”
2. 28 USC § 1920: some reporter & transcript costs, some witness fees, docket fees
iv. Attorney’s fees are not recoverable unless:
1. Authorized by statute, contract OR
2. Ordered by the court to sanction misconduct
a. R11: If one of the parties violates ethical rules, court can require the party to pay attorney’s fees for other party as punishment
v. Contingency Fees
1. Client pays costs of litigation & attorney’s fee is certain agreed upon percentage of any award recovered (e.g. 40%)
6. Estimating Cost of Suit
a. Ernie Haire Ford, Isekal
i. Legal caps on damages (e.g. punitive damages)
1. Damages limited by evidence at trial
a. E.g. economic award is against the “manifest weight of the evidence”
2. Damages limited by judicial standards of “excessiveness”
a. E.g. non-economic award “shocks the conscience” or exceeds what a “reasonable” jury might award
b. Possible relevance of comparable verdicts
7. Choosing Defendants
a. Strategic Concerns
b. Ability to recover a judgment
i. Relevant factors:
1. D’s current & future assets subject to recovery
2. Bankruptcy discharge
a. Allowed except for judgments resulting from “willful or malicious injury” (In re Busch)
quires a complaint contain: (1) a “short & plain” statement of court’s SMJ, (2) a “short & plain” statement of P’s claims, & (3) a demand for relief
c. Notice Pleading (Indulgent Pleading)- old view
i. P need only give D general notice of events prompting suit, legal claims being asserted, & remedy sought
ii. No requirement that complaint allege specific legal theories or elements of claim (Kirksey & Sparrow)
d. Flexible Plausibility Pleading- contemporary view
1. More detail needed
2. The Court ignores conclusions of law & looks only at alleged facts (Iqbal)
3. The facts must support a “plausible” claim (Twombley)
a. The Court uses its experience & common sense to assess plausibility (subjective)
4. Heightened pleading standards for specific matters under R9(b)exception
a. E.g. Fraud claim
