Civil Procedure Outline
I. General Principles
A. Adversarial System v. Inquisitive System
1. Main Features: 1.) Neutral decision-maker, 2.) Important role of advocates
2. Theory of Adjudication: Both parties motivated to present the best case possible (judge wouldn’t be invested) and no preliminary hypothesis in judge’s mind from gathering proof himself
2. Cons: Inquisitive system may be preferefable when stakes are low, need for high efficient, one side is apathetic, or access to resources is unequal
3 Goals of Process:
· Accuracy: Neutrality + Precision (narrow size and frequency of error)
o Inaccuracy= Bias (empowers one group at the expense of the other) and Imprecision (empowers law-breakers and weakens position of those who follow law)
· Dignitary: Law should be perceived as fair; People more likely to comply voluntarily to rulings
o Fairness Factors: perceive authorities as trustworthy, treated as full-fledged member of society (standing), treated in a nondiscriminatory manner
B. Due Process
1. Foundation: 5th Amendment (Federal Gov’t) and 14th Amend. (States): No person shall be deprived of life, liberty or property without due process of law.
2. Balancing Test: Mathews v. Eldridge Balancing Test: Determines whether a person has received due process under the Constitution
· What is the interest of the person who is asking for more process? (importance of interest at stake)
· What is the interest of the person who is asking for less process? (Government)
· Risk of erroneous deprviation of person’s interest due to the current procedure and probative value of additional procedural safeguard.
· Presumption in favor of government in cases not involving deprivation of personal liberty ( e.g. Lassiter)
3. Elements of a Fair Hearing
1. Notice
a. Hamdi: Must receive actual notice of classification
2. Fair Opportunity to Challenge
a. Hamdi: Fair opportunity to rebut government’s assertions (but in actuality, cannot cross examine live witnesses in regards to Mobbs Declaration)
b. Goldberg: Cross-examination and confrontation (especially where gov’t action threatens to seriously injure P and evidence is based on testimony of individuals rather than documents)
3. Opportunity to Present Evidence
a. Hamdi: Opportunity to present evdienc (but in actuality, largely his own testimony)
b. Lassiter: Orally before decision-maker; Must be tailored to capacities and circumstances of P; writing/secondhand through caseworker not adequate in this case where P is not educated and caseworker likely biased
4. Right to Counsel
a. Lassiter: State does not need to fund counsel for indigent persons
b. Hamdi: Given right to counsel on proceedings on remand
c. Goldberg: Must be allowed to retain counsel
5. Neutral Tribunal
a. Hamdi: Military tribunal
b. Goldberg: Welfare officials can be hearing officers as long as they’re not involved in that case; Decisionmaker must state reasons for determination and evidence relied upon
6. Who has Burden of Proof
a. Hamdi: Burden of proof shifted to Hamdi to rebut Mobbs Declaration after gov’t put forth credible evidence that he met criteria of enemy combatant
5. Cases:
A. Hamdi v Rumsfield: Citizen-detainee seeking to challenge classification as enemy combatant must receive:
1. notice of the factual basis for his classification
2. a fair opportunity to rebut the government’s factual assertion
3. before a neutral decision-maker
o In actuality:
§ Presumption in favor of Government’s evidence (which can be just hearsay) so long as it is rebuttable and fair opportunity for rebuttal
§ Burden shifts to D to rebut claim (even though doesn’t have good access to evidence)
§ Military tribunal
o Very divided- seems like most justices actually in favor of more process
B. Lassiter v Dept of Social Services: P, a convicted felon in prison, has not had any contact with her child, has “wilfully” left the child in foster care for two years; D wants to severe parental connection; District Ct holds in D’s favor.: Does due process require that the state appoint counsel to indigent persons before terminating their parental rights?
· Presumption against providing counsel in cases not involving physical liberty
· Must be decided on a case-by-case basis because applying balancing test, risk of error varies too widely
o Holding: In this case, counsel would not have made a difference (simple case, no criminal elements, gov’t’s case was strong, P indicated lack of interest)
o In Actuality: hearsay, could have cross-examined, lack of evidence to show P’s lack of effort
C. Goldberg v. Kelly (1970): Supreme Ct holds that recipients of welfare benefits are entitled to a hearing prior ot termination of their benefits on grounds of ineligibility but it can be an informal procedure with welfare officials as hearing officers (as long as they’re not involved in this specific case).
II. Pleadings
A. History
· Common Law Pleading: Goal was to finely narrow issues; Had to plead complaint under one recognized form of action/legal theory; amendments not permitted; people would file numerous peleadings: very time-consuming
· Code Pleading: Field Code passed in NY in 1848; CA adopted Code
o Must state “facts consituting cause of action”
§ Must be stated in adequate detail but without legal argument (too much detail is impermissibel pleading of “Evidence”)
o Simplified pleading into single form of action where complaint is sufficient
ing
· Challenge sufficiency in points of law, not fact
· Valid Defenses: (Rule 12b)
o Lack of Subject matter jurisdiction
o Lack of P jurisdiction
o improper venue
o insufficient process
o Insufficient service of process
o Failure to state a claim upon which relief can be granted
o Failure to join a party under Rule 19
· Defenses Waived if: (Rule 12(h)
o Subject matter jurisdiction can be raised at any time
o Must be raised in first pleading or by motion: personal jurisdiction, improper venue, insufficient process, and insufficient service of process must be made in first response (motion or answer); and form of complaint
o failure to state a claim/join party/legal defense can be made in any pleading, by motion or at trial
· Policy: courts don’t want to render result inconsistent with substantiive law; they don’t care whether the court was convenient
§ If Motion Granted, P can:
· P can Amend
· If he chooses not to amend, judgment of dismissal will be granted
o Judgment can be appealed- if P wins, complaint reinstated (de novo review)
o If P loses on appeal: further proceedings barred
§ If motion denied, D must answer
§ Motion for more definite statement (Rule 12e): Rarely Used-Usually only for fraud; when complaint is so vauge and ambigiouss that it would be unreasonable to require moving party to reply; must be made within 14 days of court order
§ Motion to Strike (Rule 12f): any redundant, immaterial, impertinent or scandalous matter
§ Answer: (Rule 8b) must state short and plain terms defenses to each claim asserted against it; admit or deny the allegations
§ Spcefic v. General
o Rule 8(b)(4): Where only part of a paragraph or allegation is true, the D should should admit that which is true and deny the rest
§ Admissions or Silence:
o Conclusive (evidence not admissible)
o Can be used as evidence in different case
o Sometime smart move to avoid bringing in evidence that you don’t want to be put in trial (e.g. Fuentes: can’t bring in evidence of drunkennes when kills kids in accident b/c he conceded liability- only damages in question)
§ Denials:
o Rule 11: Denials must be made in good faith after reasonable inquiry
