Civil Procedure I Outline

 
Fabio Arcilla
Civ Pro I & II
Fall 2014
Grade: A-
 
 
 
Litigating Step by Step
 
 
 
A.      Selecting a court with authority to adjudicate
                                I.            First, π must select a court with subject-matter jurisdiction and territorial authority to adjudicate. He commences a federal lawsuit by filing a complaint with the selected federal district court. (Rule 3)
                              II.            Second, the persons whose interests are to be affected must receive adequate notice. This usually is achieved by service of process. (Rule 4)
 
 
         A.            The Pleading Stage
a.       This stage is usually short in duration and seldom determinative in effect
1.     General Rules:
Purposes of Pleadings
                        i.      Federal pleading is primarily notice pleading
Form of Pleadings
                      ii.      The formal requirements – from caption to signing – are quite lenient
Contents of Pleadings
                    iii.      Pleadings should be simple, direct, and brief. The pleader should carry his burden of allegation, without pleading irrelevancies or detail
Flexibility of Pleadings
                    iv.      Alternative and inconsistent pleading is permissible, and there is liberal joinder of claims and parties
Governing Law
                      v.      In any federal action, federal law governs the mechanics of pleadings, as well as most of the other mechanics of civil procedure.
 
2.     Steps in Pleading Stage
b.      Complaint
                        i.      Rule 8(a) requires (1) jurisdictional allegation, (2)”a short and plain statement of the claim” and (3) a demand for judgment
c.       Motion and/or Answer
                        i.      To avoid default, ∆ must under Rule 12(a) make a timely response, such as (1) pre-answer objections by motion for a more definite statement and by motion to strike, (2) disfavored defenses under Rule 12(b)(2)-(5) by pre-answer motion or answer, (3) defenses on the merits by including denials and affirmative defenses in the answer, (4) favored defenses under Rule 12(b)(6) and (7) by motion and answer and (5) the subject-matter jurisdiction defense under Rule 12(b)(1) by raising it in any fashion. This scheme leaves considerable room for tactics, but Rule 12(g) and (h) imposes complicated consolidation and waiver prescriptions
d.      Motion, Reply, and/or Answer
                        i.      Usually π does not respond to an answer. However, there is the significant requirement that π make a timely response to any counterclaim denominated as such in the ∆’s answer
3.   Amendments
         i.      There are liberal provisions for amending the pleadings, either by amendment as a matter of course within certain time limits or by amendment as a matter of course within certain time limits or by amendment later with written consent of the adversary or with leave of court – Rule 15(a)
       ii.      The court freely gives leave “when justice so requires” and amendments are possible at or after trial. Rule 15(c) provides that the effective date of nondrastic amendment is the date of the original pleading.
 
         B.            DISCLOSURE
In 1993, amid controversy, the rule makers introduced a new state called disclosure.
 
1.     Purposes
Disclosure aims at achieving some savings in time and expense by automatically getting certain core information on the table and also at moderating litigant’s adversary behavior in the pretrial phase.
2.     Scope
Parties must disclose (1) at the outset, favorable occurrences witnesses and documents, as well as insurance coverage, (2) at the specified time, identity of any expert who may be called at trial, along with detailed expert report, and (3) shortly before trial, trial witness lists and the like regarding non-impeachment evidence.
3.     Mechanics
Disclosure is meant to proceed in an atmosphere of cooperation. A key feature is the requirement in Rule 26 (f) that the litigants confer early, before discovery proceeds, to consider the case, the disclosures, and a discovery plan
4.     Problems
The swirling controversy arises from doubts that the benefits of overlaying a system of disclosure can match its costs.
 
          C.            DISCOVERY
The pivotal feature of the Fed Pro system is the availability of a significant discovery stage. Discovery is not to be used to determine whether a cause of action exists.
·         Why do we have it?
o   Facilitates settlements (resolving on merits) – realize weaknesses of case
o   Eliminates issues not in dispute
o   Prepares for trial
§  Discovery is largely done outside of court and organized by parties, not highly regulated and is intended to operate with minimal judicial oversight.
 
There are six MAJOR types of DISCOVERY devices:
1.      Oral depositions;
2.      Written depositions;
3.      Interrogatories;
4.      Production of documents and such;
5.      Physical and mental examination; and
6.      Requests for admission
 
 
 
General Rules:
a.       Purposes of Discovery – discovery allows a party to expand on the notice given by the pleadings and any disclosures and to prepare for disposition of the case
b.      Scope of Discovery – rule 26(b)(1).
                        i.      Discoverable information must be RELEVANT
a.       Relevant: whether info tends to prove or disprove something that is important according to the substantive law. Relevant info must be admissible or “reasonably calculated” to lead to admissible evidence.
i.e. – hearsay is not admissible, but can be discoverable if it may lead to info that is admissible, such as the identity of a witness who actually saw the accident occur.
c.       Spoliation of Evidence: the loss of discoverable information
                        i.      Parties have an obligation to prevent spoliation & preserve evidence
                      ii.      This obligation begins before litigation. Specifically, it begins once litigation is reasonable foreseeable.
                    iii.      The courts have power (although limited) to impose sanctions for spoliation
                    iv.      If a party gives notice to its adversary of potential spoliation, then no sanctions are necessary
 
Limits on Discovery
1.      Discoverable info cannot be privileged (includes attorney-client, doctor-patient, husband-wife)
    I.            Atty-client is most important because it encourages honesty from the client