CIVIL PROCEDURE – CLASS OUTLINEProfessor Berger – Fall 2010I. DISPUTE RESOLUTION – There are alternatives to litigation, which are not bound by the same procedures as litigation. These alternatives are often handled privately and offer greater latitude to reach a solution. They are far less antagonistic, but may not result in fair or just decision. A) Negotiation and Settlement Promotion: When a party attempts to persuade another to agree to his or her terms. This is common when a dispute first occurs. This is often attempted by the parties before lawyers are even involved, and it quite often successful. This explains why so few disputes turn into litigation.Rule 16 – (a)(5) = Purposes of Pre-Trial Conference include facilitating settlement.(c)(2)(I) = matter for consideration in pre-trial conference include settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule.B) Third Party Intervention/Mediation: Parties use a third party to help them solve the dispute, but the ultimate authority is still on the parties themselves. The mediator should build trust and be creative with the solution. Mediation agreements are only legally binding if they satisfy the requirements of contract law. C) Arbitration: The arbitrator is a third party with the power to decide the dispute. Often uses collective bargaining agreements. Provides greater flexibility than the courts, offers finality, and is quicker and less costly than litigation. The Federal Arbitration Act: Made contractual arbitration enforceable; used to deny the customer the right to a jury trial if there is a dispute in the contract.II. LEGAL PROFESSION—CLIENT/LAWYER RELATIONSHIP
Lawyer’s Roles
-Advisor = inform client of rights & obligations -Advocate = asserts clients position under rules of adversary system -Negotiator = tries to get favorable result for client while adhering to requirements of honest dealings with others. -Evaluator = examines client’s legal affairs and reports to clients and others
Can also serve as:-Third Party Neutral = help parties resolve conflict
-All lawyers should use professional time to work to ensure equal access to system of justice
-Some rules in MRPC are mandatory with others are permissive and involve discretion on part of the lawyer
-In some capacities of as a government lawyer, the attorney may have responsibilities to decide things that usually rest with the client.
-MRPC details whether certain sanctions should be taken for specific violations of the rules, depending on severity of the violation, willfulness of violation, previous violations, and extenuating circumstances.
-Rules don’t give adversaries standing to bring an action against opposing counsel in a case, when they think they’ve violated a rule. –but a violation of a rule may be evidence of breaching applicable standards of conduct
MRPC:
1.1 Competence:-A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer(a): Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. (b): A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.(c): A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.(d): A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
1.3 Diligence-A lawyer shall act with reasonable diligence and promptness in representing a client.
1.4 Communication(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
A Civil Action:Actual Dispute in Case:
Did it vary depending on who you asked?
**Many different perspectives of the purposes of a specific trial
Relief being sought wasn’t just to prevent wells from being reopened, or to clean up the area, Schlictmann was looking for a substantial damage award.
Charlie Nesson felt dispute was political. His goal was to set a precedent to deter corporations from polluting in the future.
Judge thought the plaintiff’s just wanted someone to say that it wasn’t the parents’ fault (that their children got sick and died).
Schlictmann thought families just wanted companies to admit their wrongdoing.
Ann Anderson said she didn’t want the money, said it was blood money, just wanted companies to apologize. –but at end of trial she said if money was so important to Schlictmann then it was important to her
Was Schlictmann looking after the best interests of his clients?
-Was a zealous advocate but didn’t always keep clients completely abreast of the situation (such as not telling clients when an offer was made).
-Did he focus on how important it was that each individual client get the money sooner than later? Should he have?
-Did he consider how settling the case earlier would have affected his clients…as in easing their pain by putting it behind them? Should he have?
III. ACCESS TO COURT – Do court fees restrict people’s right to due process?
United States. v. Kras (SCOTUS, 1973)
Facts: P cannot afford to pay the filing fee for bankruptcy.Issue: Is P being denied due process because he is too poor to pay the fees for bankruptcy?Holding: No, because there is no constitutional right to bankruptcy. The filing fee isn’t like free speech or other rights embedded in the First Amendment. The court distinguishes bankruptcy from divorce, which is a constitutional right. For divorce, the actor has no other choice but to go through the state. However, with bankruptcy, there are other methods like settlement and debt consolidation. Hiring an attorney is a far more inhibiting cost than the filing fees to get into court. Finally, the filing fee for bankruptcy is meant to sustain the system and the system should be paid by its patrons. To circumvent this maybe use Contingency Fee, available in some cases and limited or prohibited in others (not allowed in divorce)
Rule:1) People applying for bankruptcy must still pay the filing fees, which is not a denial of due process even if they cannot afford the fees.2) People applying for divorc
s “costs” under Rule 68? Do the statutes conflict?Holding: Yes, attorney’s fees count as “costs” under Rule 68. The rule and statute do not contradict each other. § 1988 encourages meritorious civil rights suits and Rule 68 is not biased against the P it just requires P to think long and hard about settlement offers. One deals with enabling the P to bring suit, the other just encourages that once the suit is brought, settlement should be considered. Rule 68 does not define the term costs, as other rules do, therefore it can be inferred that it implies all costs. Rule: Attorney’s fees are included in the term “costs” under Rule 68, so a Plaintiff who rejects a settlement offer and receives a lower verdict must incur the cost of attorney’s fees after the settlement.Venegas v. Mitchell (SCOTUS, 1990)
Facts: P doesn’t want to pay his lawyer, the D, contingency fees, because he claims § 1988 invalidates the contingency fees when P wins and the D should pay the attorney fees in civil rights cases when P wins.Issue: Does §1988 invalidate attorney’s contingency fees?Holding: No, because nowhere in the statute does it say that the P cannot promise the attorney contingency fees. The statute does not protect P from having to pay when he agreed to pay even if the attorney was able to collect normal fees from D under §1988.Rule: The P in a civil rights action may enter into a contingency-fee agreement with his attorney, even where such a fee exceeds whatever attorney fees the court ultimately awards.V: ADVERSARY SYSTEM/RULE 16 – The United States legal system is an adversarial system pitting each party against each other. However, Rule 16 seems to limit this system by forcing the parties to share information and conduct settlement negotiations.Band’s Refuse Removal, Inc. v. Borough of Fair Lawn (NJ, 1960)Facts: During trial, judge had private meetings with prosecutor, unexpectedly added issues, called over 27 witnesses, examined witnesses, and appointed amicus curiae. The record also showed the judge had personal motivations in favor of P and the amicus curiae shared these motivations. The record revealed “an extraordinary participation by the judge in the trial of the cause.” Issue: Did the judge act unfairly by excessively intervening in the trial?Holding: Yes, the judge acted unfairly and cannot intervene to that extent. The judge must stay impartial, which is his primary duty. When he acts improperly, he denied D due process. The judge sacrificed his impartiality by talking with P’s lawyers and incorrectly questioning witnesses.Rule: A judge may not initiate or inspire litigation and may not expand a case by adding new issues that come to mind during trial, without giving the parties a full and fair opportunity to meet those issues. Furthermore, a judge may not pre-judge issues before a single word of testimony has been adduced. As pointed out by the Supreme Court, the power to take an active part in the trial must be exercised by the judge with great restraint.Problems of Jurisprudence: The following conditions should be met for a judgment to have moral force:1) Judge should not act on his own initiative.2) Judge has no direct or indirect interest in the case.
