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Civil Procedure I
Temple University School of Law
Little, Laura E.

CIV PRO

I)                 REASONS FOR PROCEDURE
A.      Goldberg v. Kelly Issue: Whether a state that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the of the Fourteenth Amendment?
1.        If the stakes are high, there is more procedural protection (they were taking away the essentials of life- Maslow’s hierarchy)
2.       Procedures must be given at a meaningful time (can’t take advantage of any future procedural safeguards if do it before, because their basic needs won’t be met)
3.       Procedures should ensure that the substantive law is implemented accurately (instruments that help us work out disputes)
4.       Procedures benefit from more than one decision maker
(A) Two heads are better than one;
(B)   First decision maker in hierarchy may be most objective because they know that their work is being checked; but this could also lead to laziness/sloppiness
5.       Procedure help us anticipate future problems while ensuring consistency and uniformity and when fashioning them we need to keep this in mind
6.       Procedures should not be over formal and cumbersome
(A) This enables accessibility to the legal process for your all
(B)   Too much procedure=too much time and $
(C)   Constant balance between efficiency and fairness           
(D) Sometimes lawyers procedures filter out only the legally relevant issues, not what they were originally concerned with (Riz thinks like Sullivan-capability problems)
7.       Notice and an opportunity to be heard is fundamental
(A) Providing notice to those affected serves accuracy (ref. To #3)
8.       Opportunity to be heard should be tailored to the capacities of litigants and circumstances
9.       Procedures should avoid bias and conflict of interest
10.    Procedures should confine decisions to state rules and evidence—serves consistency and reviewability
II)            Alternative Dispute Resolution–Sometimes in the adversarial system you can’t arrive at a fair decision for everyone, despite the procedures; why we may need alternatives
A.      Assumptions of the Adversarial System
1.        Parties are on equal footing
2.       Even if not on equal footing, they at least they have lawyers
3.       Parties will be honorable
4.       Lawyers are ethical
5.       Norm bound
B.       Problems with litigation system
1.        Delay in getting a remedy; takes a long time to turn a dispute into a resolution
(A) Evidence may get stale
(B)   The longer the delay, the higher the cost
(1)    Skewed incentives result from the delay; could take 5-7 years for a $ remedy; no prejudgment interest so there is a big incentive for the D to stall
(2)   Gets people to settle
(3)   Parties with lots of resources can out litigate/more power
Negotiation: the parties have the most autonomy; lawyers do not have to be involved- can be just regular shmos

Mediation: Not a zero sum gain; both sides can benefit; third party is present to listen, observe and help them identify overlapping interests to reach a resolution to serve them both; often used w/family; can get alternative remedies like ‘I’m sorry, bitch”
Concerns about mediation:
Ø       if one party is stronger, there is less means to equalize;
Ø       there is no record and therefore less check on the proceedings

Mini trial: Technique to get parties talking, good fir people who are really pissed to get info out of them
Ø       expensive
Ø       beneficial to parties who do not want to air their dirty laundry

Arbitration
Ø       parties bind themselves by K to resolve the dispute by arbitration(other ways above they are not bound)
Ø       norms v. law ( so that portrayed practice can be the norms
Ø       the way that we come up with resolution is tailored to the specific parties; i.e. trade practices
Ø       arbitrators are experts in their filed so there is no need to be educated so don’t need to educate yourself

Private Judge
Ø       rent a judge to act as a rep of the sovern power
Ø       parties K agree to be bound by the decision of the rent-a-judge
Ø       very expensive

NOTE: More autonomy(for procedure and outcome) closest to mediation as apposed to closer to private judge(litigation is after this) involves coercion from outside

KINDS OF JURISDICTION

PARTIES

court may not exercise jurisdiction if considerations of “fair play and substantial justice” would make requiring the D to defend the action in the forum state so unreasonable as to constitute a due process violation. This might be the case, for instance, if the burden to the D of defending in the forum state was unusually great, and the interests of the P in having the controversy heard in the forum state is very slight. Generally, however, if the D has the requisite minimum contacts with the forum state, it will not be unreasonable for the case to be tried there, and there will thus be constitutionally-exercisable jurisdiction over him.

Jurisdiction Over Individuals: The Supreme Court has repeatedly attempted to define the appropriate limits on the power of state courts to exercise personal jurisdiction over Ds, that is, to require them to come into the state to defend lawsuits there. Pennoyer v. Neff= power + notice: Neff (P) brought suit in Federal Court to recover possession of a parcel of land purchased at a sheriff’s sale and later assigned to Pennoyer (D). The sheriff’s sale was made in execution of a default judgment rendered against P in an earlier case. (Mitchell had rendered legal services to Neff and filed suit against Neff seeking payment). The judgment was based on in personam jurisdiction; however P was a nonresident and was not personally served with process. Constructive service by publication in Oregon newspapers was deemed adequate notice by the court in the original suit. P sued to recover the land, claiming that the court in the original suit did not have jurisdiction to render a judgment. The federal circuit court upheld P’s claim; D appealed. Neff basically asserted that Pennoyer did not get good title to the land because the sheriff’s sale was bad so the judgment in the