Select Page

Civil Procedure I
University of Iowa School of Law
Steinitz, Maya



Introductory Principles

1. Differences between FRCP and statutes

a. Process for pass FRCP differs from that for statutes because the rules are written by the advisory committee to the Committee on the Rules of Practice and Procedure, approved by the Supreme Court and ratified by Congress

i. When courts are interpreting FRCP, they are interpreting rules written by judicial branch

b. FRCP are accompanied by Advisory Committee Notes, which tend to be construed as similar to a legislative history

2. What is Civil Pro, and how does it affect lawyers

a. Civil pro is litigation, and constitutes most of what lawyers do in the pretrial process of civil cases

b. Discusses process, not substance; cuts across all fields of substantive law

c. Even if a transactional or compliance lawyer, must be familiar with Civil Pro

i. All lawyers analyze in the shadow of litigation

1. Compliance law

a. Letting companies know what they must do to comply with the law before they take action

3. History of Civ Pro

a. Difference between common law and equity

i. Equity

1. Fairness (discretion for remedies to judges), injunctions, and specific performance

2. Occurs when there is no adequate remedy at law

a. Generally means, $ isn’t going to help

3. No right to trial by jury

4. Joinder occurs

5. More discretionary

ii. The Courts of law

1. Various characteristics of the English common law system that led to the development of courts of equity

a. The writ system

i. Single issue pleadings; extremely rigid, so you had to file the correct complain, or under the correct writ, for case to be heard

ii. Writ is a document that lays out legal rights, processes and remedies for various claims

1. If there is no writ, there is no right

iii. Writ of habeas corpus and certification still exist

iv. Under writ system, if a singe event occurs causing multiple injuries, then P must file separate suit for each claim

1. Inefficient and unjust

b. Development of Court of Equity

i. King, do to these problems, develops separate court of equity

1. Lord chancellor is head of court of equity

2. When something occurs that is not within the writ, or the writ does not provide an adequate remedy, case goes to court of equity

3. Court was charged with equitable remedies and making sure the result was fair

a. Court had essentially unlimited power, but the accessibility of the court of equity was discretionary

c. 19th Century – historical wave 1

i. Court of law and equity merge

1. Writs eliminated and turned into complaints

a. Only 1 necessary for multiple injuries

b. Can ask for equitable or legal remedy

c. Move from rigid to simple

2. They retain the characteristic that a pleading in equity still allows judges more discretion

a. Quantum meruit is important development here

i. Restitution, not damages

d. Historical wave 2 – 1980s onwards

i. Attempt to cut back on litigation by reversing trend and restricting access to courts

1. More formal procedures and complex pleading requirements; more divided suits

2. Movement is still in full swing

4. Common law v. Civil law

a. Common law

i. Usually doctrine/ judge made law/ case law

ii. Common law also refers to type of legal system we have in America

b. Civil Law

i. Everything is embodied in statutes

1. No need for precedent, and less jury rights

ii. Comes from continental Europe

iii. Eminent scholarship more important in arguments then are previous judicial decisions

5. Corporations and lawsuit

a. Corporations often find themselves at Defendants; why?

i. They have the money, so lawyers choose to sue them

1. Often lawyers just sue the person with the deepest pockets

a. If the choice is to go after an individual or a corporation, they’ll go for corporation

b. Likewise, if in discovery they find out a D has insurance, or otherwise deep pockets, they’ll go after more

2. Sheer number of people they come in contact with

b. Why do they not find themselves as Plaintiffs

i. Not worth their time to sue individuals

ii. Expensive to sue other corporations, and could affect their professional reputation

iii. Corporations are more conservative actors because they have much more to lose

1. Exception: retail and the marginal value of the dollar; why would a retail store or chain spend the time pressing claims against someone who shoplifted something from there store

a. While transaction costs of stopping a single thief don’t make sense, the cumulative effects – between 3-5% – outweighs transactions costs, so deterrence effect important

i. Economy of scale situation

6. Process of Procedure

i. Selecting a proper court

1. Subject matter and personal jurisdiction

1. State courts have concurrent jurisdiction with the US district courts

2. Proper venue

ii. Begin with service of process: summons and complaint

a. Summons – command to D to come in and respond under penalty of default

b. Complaint – with the summons, lays out that these facts have occurred and you are entitled to a remedy as a matter of law (contains the claim against D)

iii. answer – not a remedy for the type of harm you had, the facts are incorrect; admit or deny the factual allegations made in the complaint

1. here must plead affirmative defenses

iv. motion to dismiss – demur, lack of jurisdiction, failure to state a claim

1. injury is one for which the law furnishes no redress

2. P failed to allege a necessary part of the case

3. Complaint is too general or too confused and therefore fails to give notice

v. once we get past the pleadings – disputed issues of fact

vi. discovery – P and D extract info from each other

1. deposition

2. interrogatories

3. request for the production of documents

4. request for admissions

5. physical exams

6. ability to get info out of other people is limited until the lawsuit begins

vii. after discovery but before the trial – motion for summary judgment (P, less common, or D): generally there are no facts

1. no genuine dispute as to any material facts and entitled to judgment as a matter of law

2. burden of persuasion- must demonstrate by a preponderance of the evidence that necessary facts are likely so (if they have no evidence there is no way for them to push it across the line for the burden of proof)

3. paper based – transcripts of depositions, affidavits, documents, videotapes; wouldn’t have the finder of fact looking at live witnesses

4. if the matter is fairly debatable have to have the finder of fact (jury) decide issues that are close

viii. Jury selection

1. If there is a right to trial by jury, either party can assert it

ix. Trial

x. Submit case to jury

xi. Verdict – (jury would come back with it if it’s a jury trial, judge gives verdict if its not)

1. General verdict – jury doesn’t need to give reasons, just an answer

2. General verdict with interrogatories

3. Special verdict

4. Traditionally, only a unanimous jury verdict is effective. Can be a majority in some states/with the consent of the parties

xii. Post trial Motions:

1. If the jury gets it wrong, can file a renewal of the motion and this would be called a jnov, (judgments as a matter of law) – after sent to the jury – raises same question as motion for directed verdict

2. New trial – do over motion

1. Weight of the evidence

xiii. Final judgment

1. Execution – method of forcing the losing party to satisfy a money judgment

2. Writ of execution – issued by the court commanding an officer to seize property of the losing party and sell it if necessary.

3. Injunction/contempt of court

xiv. Appeal – no appeal until a final decision of the court

1. Even issues that occur during discovery that are reviewable issues, can only appeal the final judgment so often times by the time the trial is completed these issues are of little importance anymore.

2. Rarely re-examine issues of fact

3. Transcript of the trial

4. Identification of the issues on appeal

5. Written briefs

6. Possibly oral arguments

7. Affirm, modify, reverse – remand, on grounds (which puts an end to things)

8. Always more than one judge deciding an appeal

xv. From here, discre

iliated with the original case

2. Hall goes to the school, enters, and is immediately held in criminal contempt

b. Issue

i. Whether a court in equity has the power to punish people who are not in privity to the case from which the injunction was ordered, whether they can enjoin a party in an ex parte action

c. Holding; conviction affirmed

d. Rules

i. Court has ability to protect its ability to render a binding judgment (desegregation) between the original parties to litigation by issuing an interim ex parte order (the injunction) against an undefinable class of third persons

1. When a third party’s conduct threatens both the Plaintiff’s rights and the Defendants duties that the court has the power to enforce through previous litigation, court may protect its ability to render a verdict by enjoining third party in an ex parte ruling

2. When that third party violates an order he has notice of, he may be held liable for criminal contempt

ii. Ex parte ruling is one in which only one of the parties is present in court

e. Analysis

i. Even though the order named an entire class of people, of which D was one, and the named parties were not in privity, because Ds action threatened the ability of the court to enforce segregation without racial riots by violating the injunction, the order is applicable to him and he may be held in contempt

The Right to be Heard; Elements and History of Due Process

1. Goldberg v. Kelly

a. Facts

i. P was a welfare recipient, and after he stayed at a hotel that his caseworker told him he couldn’t the case worker terminated his welfare benefits before he was given a termination hearing

1. P has right to termination hearing under NY interpretation of law, but law mandates that his benefits are cancelled from the time his case worker says they are until the time of the hearing, which can often be a significant amount of time

2. P arguing that he has a property right to the assistance and that due process requires a termination hearing before that is taken

b. Holding; Pre-termination evidentiary hearing required, so NY provision is unconstitutional

c. Rules

i. Due Process requires that recipient of welfare benefits be provided a pre-termination evidentiary hearing before his benefits are terminated

ii. Once statutorily entitled, a recipient of welfare benefit has a right to those benefits which cannot be taken without due process

iii. Extent to which procedural due process must be given depends upon whether the recipients interest in avoiding that loss outweighs governmental interest in summary adjudication – Balancing Test

iv. All that is required for welfare hearings are minimum procedural safeguards

1. Timely and adequate notice detailing the reasons proposed for termination

2. Effective opportunity to defend by confronting adverse witnesses and presenting his own evidence and arguments orally

3. Decision maker’s decision must rely solely on evidence presented at hearing

d. Analysis

i. Due process protection is warranted because welfare recipients often depend on their assistance as a very means to live

1. Thus his interest in uninterrupted assistance, coupled with interest in not erroneously taking people’s benefits, outweighs state interest in not increasing fiscal and administrative burdens

a. Thus preliminary hearing need only protect P from infringement on these two areas of concern; need not have an entire trial