Course Themes:
· Recent 15 years of the procedural world, changing role of the judge, judge’s impact on the professional responsibility of the attorneys
· How do you oppose a claim?
· How do you develop a factual basis for the claim?
· How is it presented to the court?
· How do the ethical rules that impact these rules play out in the system?
· Understanding how significant the procedural aspects are to the substantive outcomes of the specific cases
· Hypo:
o Assume you own a camera. Left it on driveway, your neighbor accidentally stepped on it and broke it.
§ Do you take action? Use judgment to determine who you think was at fault.
· Wasn’t my fault, neighbor shouldn’t have been in my driveway. I think he may have done it on purpose.
· What is at stake?
· Is it worth doing anything?
§ What is the motivation to move forward?
· What is the dispute at hand?
· What do you want out of it?
o Apology? New camera?
§ Can this dispute be resolved?
§ Much goes on before deciding whether or not to move forward. The choice to proceed. As the case goes on, do I continue to proceed? This can happen at any point in the dispute.
· Does the neighbor become a pain in the ass moving forward?
· Is it cost prohibitive? Litigation is not free.
· Is it worth the time/money/headache?
o Much different than criminal case; where the choice to proceed is of the injured in civil, the police very well may be the decider of whether to proceed in criminal cases.
§ Determine the actual nature of the injury. What do you want the resolution to be?
§ Neighbor may come over and offer to remedy situation.
· What is the camera actually worth?
· You want $30, he offers $20, can’t resolve.
§ Should we bring another in to mediate or arbitrate?
· Both sides would have to agree to leave it in the hands of an arbitrator.
· Should we flip a coin? Is it fair?
· What are the values we are trying to test or reinforce?
· How long will it take?
§ Court system is the only mandatory course of action.
· You sue neighbor, he can’t just refuse; he has to respond and there will be consequences if he doesn’t.
1. Dispute Resolution
a. Private alternatives to litigation
i. Negotiation and settlement promotion:
1. Many more lawsuits are settled than are tried in court.
2. Rule 16(c)(2)(1) – Court can take ‘appropriate action’ regarding ‘settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule.’
3. Judge’s active involvement can be effective but they must be careful so as not to coerce. It is very common today to have judges proactive in settlement promotion
ii. Third party intervention can vary considerably:
1. Mediation – Facilitation of discussion and generating options
2. Neutral evaluation programs – providing an evaluation of the strengths of the parties’ cases on the law or facts
3. Trial runs – third party (ies) gives a nonbinding opinion after hearing the parties summarize their cases.
b. Mediation (most frequently used form of ADR)
i. Rather than applying legal rules to the parties’ behavior, the mediator lacks authority to decide who is right.
ii. Mediator helps to reduce level of antagonism between parties.
iii. Brings creativity. The parties may be at an impasse, and the mediator can help them to go beyond the legal definition and scope of their problem.
1. These solutions can be more novel than a court remedy, as they are generally agreed upon under less adversarial terms.
iv. Help to create doubt in the minds of the parties as to the validity of their positions, and convince them to compromise.
v. There are many approaches:
1. Non directive mediation – mediator seeks to facilitate communication but not impose solutions.
2. Therapeutic – more active role in helping to resolve disputes (family law cases)
3. Evaluative approach – mediator gives opinion as to how the court may rule; these tend to be former judges.
4. Transformative approach – mediator seeks to engender moral growth in the parties through empowerment and recognition.
5. Collaborative law movement – parties agree in advance to avoid adversarial threats and negotiate all matters that require approval of the court. If settlement not reached, the lawyers resign and the parties hire litigation counsel.
vi. Mediation can be legally binding if they satisfy the requirements of contract law.
vii. Mediation has become court annexed, where statutes and court rules often encourage or require parties to mediate as part of the process.
c. Arbitration
i. Resembles adjudication more closely than mediation because the arbitrator (3rd person) has the ability to DECIDE the dispute instead of move parties to the middle. This power is given to the arbitrator by the parties’ agreement to submit to arbitration.
ii. To initiate, one party can demand arbitration. If the other party refuses it is possible to get a court order to arbitrate pursuant to the agreement.
iii. Federal Arbitration Act (FAA) passed in 1925 to provide that federal courts would enforce arbitration clauses and awards at a time when many states would not.
iv. Domestic arbitration in the US typically has ONE arbitrator
v. An advantage for arbitration is its finality, as opposed to the extensive appeals in litigation
1. Awards may only be vacated on limited grounds stated in the FAA, by actions such as fraud, deceit, misconduct, etc.
vi. Mandatory arbitration in adhesion (binding) contracts-denies customer right to a jury trial from any disputes coming from the contract. Very popular now.
1. Supreme court has applied FAA broadly, holding that it “declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.”
2. Unconscionability has become principal ground for challenging arbitration clauses in binding contracts.
vii. Class action bans in arbitration clauses
1. Very controversial right now, Supreme Court ruled that where the arbitration clause was silent as to class treatment the issue was for the arbitrator.
2. Most courts have been unwilling to find class action bans unconscionable
3. Binding arbitration is becoming a primary way of dispute resolution in contractual disputes.
PROS and CONS of ADR:
· PRO: Concerns abound about judicial encouragement of settlement denying parties the protection of the courts, which are best suited to protect and preserve rights.
· CON: One danger is that disputants may end up, by using ADRs, ignoring established law and the values reflected by that law.
· CON: Also, results of litigation can be viewed as a public good.
· PRO: Where the parties can expect to continue a long relationship, ie divorce, ADRs can have a potential positive upside by reducing adversarial nature.
Notes about ADR
· Prevalent attitude in the ADR movement is that litigation is bad
· Another common ADR theme is that the litigation process is too adversarial.
· Note that American courts typically do not provide free counsel to participant in civil cases.
2. Legal Profession
a. People perceive the faking of accidents as a distinctly American characteristic, arisen from the late 1800s. Accident faking appeared around the same time as ambulance chasing. Upon examination by legal scholars, these perceptions are generally not proven, as they are fictitious or at least embellishments. Many studies presented that show litigiousness of our society isn’t as high as thought.
b. Bar disciplinary rules are a matter of internal governance of the association, and are not legally binding on courts outside of disciplinary hearings
c. Most jurisdictions use versions of the Model Rules of Professional Conduct prepared by the ABA to regulate lawyers.
i. The more controversial an ABA rule, the more likely individual states are to have altered versions of it
d. State disciplinary authority – committee, agency, or state bar association empowered to draft and enforce rules of conduct
e. 3 federal approaches:
i. 1 adopt ABA version of model rules
ii. 2 adopt forum state’s version of model rules
iii. 3 idiosyncratic rules that may differ from court to court
1. Very important to pay attention to the approach adopted by a particular court
f. Courts and legislatures
· Courts often get into the act of regulating lawyers
· Trial courts have the authority (called track 2 in this book) to regulate the activities of lawyers who practice before them, including the power to regulate multistate representation
· Generally applicable law refers to sources
one. In addition, SC thought the Court in Boddie stopped short of saying that the poor always have the right to relief w/out payment of fees.
Misc.
5-4 decision. The dissenters thought the violation of due process in this case aligned w/ Boddie and that he should be able to get relief.
· Boddie relates to argument for the Constitutional claim.
· In forma pauperis – too poor to pay
3 claims in the argument:
1. Statute with in forma pauperis
a. Unsuccessful, as this was interpreted to not be an issue that bankruptcy applies to
2. Common law right – there has always been a right to proceed without paying fees if you cannot afford to do so.
a. Again, not applicable to bankruptcy.
3. Due process clause under the 5th amendment.
a. Argument that his rights were violated
i. District court found that statute was unconstitutional. (1915)
b. US gov’t was allowed to proceed to uphold the law because they were arguing for the upholding of that statute.
· This case went directly from trial court to USSC. Mainly because a federal statute was found to be unconstitutional, it was allowed to jump to SC.
· This particular right as part of the dispute is not as fundamental as divorce. It is not an exclusive means to an end.
· Is there a constitutional right to have a dispute resolved by the court system? No.
· There is a fundamental difference between the plaintiff bringing the action and the defendant being brought into suit involuntarily.
· Court costs are another gate keeping mechanism
· BURGER’S CONCURRING OPINION:
o The court is a mere overseer in bankruptcy proceedings, not absolute controller
o Bankruptcy laws are being reviewed
· DISSENT:
o This IS a violation of due process!!
o Kras making good faith attempt to obtain discharge
o Entered into contract voluntarily, like Boddie
§ No “recognized, effective alternatives”, like Boddie
o Even small weekly fees are too much for him, and unless he receives access to bankruptcy court he’ll stay in the hopeless situation he’s in now
o Fixed fees; no salaries dependent on such payments
o *No evidence that any substantial revenue would be lost by allowing such indigents to file without prepayment
· Cited Case:
o BODDIE V. CONNECTICUT
§ Challenge by welfare recipients to specific Connecticut procedures (including payment of court fees) that “restricted their access to the courts for divorce”
§ Court reversed district court ruling that State could limit access to courts by fees which “bar persons on relief from commencing actions”
· Justice Harlan: denied people the “right to be heard,” something firmly established in due process
§ WHY IT SHOULDN’T BE APPLIED:
· Court had emphasized they “go no further than necessary to dispose of the case before us”
· Touches directly on marital relationship – such fundamental relationship has previously been recognized by court
· Failure to dissolve marriage seriously impaired their freedom to pursue other activities; Kras’ situation doesn’t do the same
o If not allowed discharge, his position won’t be “materially altered” in any constitutional sense….NO FUNDAMENTAL INTEREST….can pursue other avenues to amend relationship w/ creditors
§ WHY IT SHOULD BE APPLIED (DISSENTING OPINION):
· Significant factor found was that marriage was a freely entered commercial contract
· Judicially enforced obligation
5. Attorney’s Fees
a. Cost of litigation
· Each side usually pays their own attorney costs
o May effect whether or not you proceed w/ litigation, or how you defend against litigation
· RULE 68: Shifts to the P all “costs” incurred subsequent to an offer of judgment not exceeded by the ultimate recovery at trial
o If a timely pretrial offer of settlement is rejected and the final judgment obtained isn’t more favorable than offer, offeree must pay the costs incurred after the making of the offer
§ **Meant to encourage settlement and avoid litigation!!
§ NEUTRAL….DOESN’T FAVOR D OR P!!! (PG. 509)
**RULE 68 ONLY APPLIES IF JUDGMENT EVENTUALLY OBTAINED BY PLAINTIFF
