HANDOUT #1: OVERVIEW OF THE LITIGATION PROCESS
3 Basic Themes:
How to apply the Federal Rules of Civil Procedure:
First, learn how to read the rule
For this course, legislative history is important. The Leg. Hist. Can be found on the back of the Rules book.
Read the rules and legislative history before reading the cases.
Strategic Application of the rules
Theoretically, what do the rules tell us about the legal culture and practice?
Question #8- Litigation Timeline:
Investigate-As dictated by Rule 11
11(a)- All papers submitted to the court shall be signed either by an attorney representing a party, or if the party is unrepresented, by the party itself.
11(b)- The language within the pleading, or whatever type of document is filed, it must be filed only after a reasonable inquiry of all the facts under the circumstances and…
i. must not be presented for any improper purpose, such as to harass the opposing party or delay litigation unnecessarily
ii. the claims and arguments therein are warranted by existing law
iii. the allegations and contentions have factual support, or are likely to have factual support after discovery
iv. denials of factual contentions are reasonably based on a lack of information or belief.
11(c)- If the court feels that subsection “b” has been violated, it may impose sanctions upon the parties, attorneys, law firms that are responsible.
i. How initiated:
1. Motion by opposing party
2. On court’s initiative
ii. Nature of Sanction; Limitations:
1. Monetary sanctions may NOT be issued for a represented party for a b(2) violation.
2. A court may not issue a monetary sanction on its own accord unless it issues a show cause order prior to violating party dropping its motion or settling.
3. When issuing a sanction, the court must describe the violation and explain the sanction’s basis.
File the Complaint
Set out the legal claim
Governed by Rule 5(e)
Summons and complaint are served to Defendant
Governed by Rule 4
i. In order to hear a claim, a specific court must have two types of authority:
1. Subject Matter Jurisdiction- Authority over the subject
a. State courts deal with all matters dealing with the state
b. SMJ of Fed. Courts more limited. They can deal only with cases that either deal with a federal question, or have diversity jurisdiction.
2. Personal Jurisdiction- The personal jurisdiction of each state court is determined by that state’s constitution.
Defendants, in response, can either sit and “default,” or do a number of other things:
Motions- Defendants can file motions requesting a number of different things, including a motion to dismiss.
Answer- Defendant can answer to complaint. He does so by following each paragraph of the complaint and answering it individually. Answers are covered by Rule 8.
Counterclaims- Defendant can file a counterclaim, governed by rules 8-14.
Discovery- Each side founds out the information of the other side. This is done by a number of means:
Depositions- A Q&A session with a witness, under oath, no judge present. Rule 30.
Interrogatories- Written questions to be answered by the other side. Rule 33.
Requesting Documents- Each party can request the internal documents of the other.
Automatic Disclosure- Each
c. Statistical assessment of error rates
i. Overall error
ii. Appeal error
3. Government or Public Interest-
a. Procedural Functions- Administrative burden/cost of an additional procedure
b. Type and purpose of agency, how close to a judicial agency. The further you get from a judicial type of agency, the less need you have for a hearing. WHAT DOES THIS MEAN? ASK ROITHMAYER
Question #3: The Mashew Assessment of the Eldridge Test
àMashew says that the test laid out by the court in “Eldridge” fails because there are no moral considerations taken into account. Values he feels are ignored:
1. Individual Dignity- Loss of dignity, self-respect. The court must find a balance between the objective and the subjective.
2. Equality- Does the test treat like parties alike? Consistency is important.
3. Tradition- Legitimacy, Predictability, and Economy
4. Utility- Focuses on how the court’s decision will effect the collective; opposite of individual dignity because is unconcerned with the effect on the individual, so long as the collective is benefited.
a. There must be a balance, however. Mashew feels that the court placed too much emphasis on the collective, and ignored the individual. The court, Mashew feels, didn’t take any of the first three values into account.
Question #4: Lassiter v. Dept of Social Services- Court applies the Mathews test in determining if plaintiff needs a lawyer: