Civil Procedure I—Yamamoto, FALL 2001
I. Overview of procedure: rules, process, values
A. Civil Procedure is the one topic in first year law school that cuts across all disciplines. In studying Civ Pro, constantly go back and forth between the “nitty-gritty” and the “big picture.”
1. Nitty Gritty: Look at the specific rules, statutes, case law. Try to figure out how the people are acting and reacting.
MUST KNOW: Statutes cited; related cases; and rules involved – for EXAM!
2. Big Picture: How is the detail affecting the big picture. Is the judicial system effective in solving the problem? Look at the case in the context of history. What was happening around that period? What implications does a case have on the future? Work in the bigger picture/context. Who are the players? Decision makers? What economic, political, social issues, concepts, and situations. We are in an adversarial process/system.
Nuisance value settlement: sometimes you just settle because it would costs less than if you had to defend yourself in court.
English Rule of Attorney: each side pays its own.
Alternative Dispute Resolution (ADR) – mediation
CAA – Court Annex Arbitration
Rule 11: sanctions for frivolous filings. Research into facts and laws.
B. Civ Pro is currently in a period of great flux and change. The change is being caused by pressures by parties from both outside and inside of the judicial system.
1. Lawyers are seen as unethical.
2. Justice seems to be for sale.
3. Crass commercialism seems to permeate the profession.
4. There is a discrepancy between the satisfaction w/ the work that lawyers do and the public image of lawyers.
a) The legal outcome may be desirable, but the process is not.
b) The system is seen as adversarial.
c) Lawyers do seem technically competent.
d) Lawyers do help the disadvantaged secure rights.
e) Lawyers are the translators/interpreters that allow lay people to participate in the legal system and perhaps to change the law.
5. Where is the pressure for change coming from?
a) Branches of the gov’t (Congress, Executive, and Judiciary)
b) Corporations
c) Insurance companies
d) Media
e) Educational institutions
f) Voters
6. Ho’okele Project
C. Traditional Rule Making Process
1. Rules for procedure have traditionally been formulated and installed by the Judiciary. The Chief Justice of the Supreme Court nominates members for the Advisory Committee.
a) The Advisory Committee drafts rules and solicits comments from other judges, academics, and specialists in those areas.
b) Draft is sent t
ate. Once the Supreme Court hears a case and passes a decision, the process ends and the problem is considered solved. However, if federal issues are involved, an appeal can be made to the U.S. Supreme Court (per writ of certiorari). There is no guarantee that the U.S. Supreme Court will hear the case.
Supreme Court—Final authority for all judicial decisions in the country. It chooses which cases it will hear.
Intermediate Court of Appeals—First court of appeals. Losing party from this court can appeal to the State Supreme Court.
Circuit Courts of Appeal—Regional courts that have jurisdiction over several Districts. There are 11 Circuits plus the District of Columbia and the Federal Circuit. Hawaii is in the 9th Circuit. Decision of the Court of Appeal holding jurisdiction is most persuasive throughout that region. Parties can appeal decisions to the U.S. Supreme Court.
