KU Law
Laura Dooley
Civ Pro
Fall 2010
I. Anatomy of a Lawsuit
a. Adversarial system. Both sides get a chance to tell their story and both sides are responsible for presenting their cases—system relies on self-advocacy, won’t work if only one side gets their say (accuracy value), we believe it will be more accurate.
b. Value of being heard. Justice is more than finding the facts. Being heard is important (participation/dignity value).
c. Extraordinary situations that justify postponing notice:
i. Collection of taxes
ii. Meet war needs
iii. Protect against econ disaster of bank failure
iv. Protect from bad drugs/food
II. Due Process
a. Defns
i. Personal jurisdiction: the power of a court to enter judgment against a specific defendant
ii. Provisional remedies: things that happen at the beginning of a lawsuit. No trials, no proof, for provisional remedies, trial occurs after these remedies and before the final judgment.
1. Kinds of Provisional Remedies
a. Writ of replevin—repossession of the goods (done at beginning of lawsuit—meant to fixe the status quote pending resolution of the lawsuit)
b. Garnishment—mechanism that allows you to freeze assets of one person in the hands of another person, i.e. freezing a bank account (done at beginning of lawsuit—meant to fixe the status quote pending resolution of the lawsuit)
c. TRO—temporary restraining order (done at beginning of lawsuit—meant to fixe the status quote pending resolution of the lawsuit)
iii. The court seems to demand that some sort of hearing occurs before a provisional remedy occurs.
iv. Opinions of the court: are precedent, other sections are the plurality (not binding precedent).
v. Prothonotary: principal clerk of a court
b. DP requirements before replevin
i. DP under the 14th Amendment requires that parties facing a replevin action be notified in a timely manner and given an opportunity to be heard prior to a prejudgment seizure.
1. Temporary, non-final deprivation of property is nonetheless a deprivation
2. The state can only take stuff without a hearing when:
a. The seizure is directly necessary to protect an important public interest.
b. There is a special need for prompt action.
c. The state keeps strict control of the seizure process by having a government official make sure the seizure is necessary and justified.
ii. DP does not require that the D have possession of the property during the pendency of the action, only that he have notice and an opportunity to be heard before deprivation.
iii. Other considerations: (+ = more likely to fly, – = less likely to fly)
1. Affadavit
a. Does it require documentation/specific allegations? +
b. Is it just a conclusory allegation? –
2. Who issues the writ?
a. Judge (i.e. neutral officer)/officer of the court +
b. Clerk –
3. Is there security for the item—is a bond required?
a. Yes +
b. No –
4. What is P’s interest in the property?
a. Is the item itself under claim? (Real interest) +
b. Is P attempting to secure the item as payment for unrelated debt? –
c. Tests for considering what is required by the ct to satisfy DP
i. CT v. Doehr 3-part balancing test for when case is between private parties. Evaluating whether a state has done enough to make seizing property valid.
1. Look at P's interest (creditor/seller)–if there is a pre-existing interest in the property, then the interest is high. If the case is unrelated and there is no pre-existing interest, then the interest is low.
2. Look at D's interest–the weaker the D's interest, the fewer procedures we need
3. Look at the risk of error–has the govt put enough procedures into place that the error is reduced enough, given the interests of the P and D.
ii. When the govt seeks a deprivation the test is:
1. Consideration of the private interest
2. Risk of erroneous deprivation
3. Value of further safeguards
4. Gov’t’s interest
iii. Types of procedures that can reduce the risk of error:
1. Pre-seizure hearing
2. Bonds
3. Affidavit with specific allegations
4. Judge
III. Jurisdiction over Parties or Property
a. Defns:
i. Personal jurisdiction: the power of a ct to enter a judgment against a specific defendant. 3 factors:
1. Purposeful availment
2. State interest
3. Convenience
ii. Comity: refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative, and judicial acts.
iii. Ex parte: An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present.
iv. 3 types of proceedings:
1. Proceeding in personam: power to render a judgment for or against a person by virtue of his presence within the state's territory or his citizenship there
2. Proceeding in rem: “the thing” power to determine the status of property located within its territory.
a. In an in rem case the ct's power is limited to the property itself. The judgment cannot exceed the value of the property.
3. Proceeding quasi-in-rem: judgment for or against a person , recovery is limited to the value of property that is within the jurisdiction and thus subject to the ct's authority.
v. Presence: If you're present to be served with process, then you're present. Length of time is irrelevant as long as you are there for service.
vi. Property: For the ct to have power over the property, it has to have power at the outset (though an attachment or lien).
vii. Domicile: the place where (a) you're physically present and (b) intend to remain indefinitely. You
Consonant: in harmony with
xxvii. Arguendo: “for the sake of argument,” Making an assumption arguendo allows an attorney to pursue arguments in the alternative without admitting even the slightest possibility that those assumptions could be true.
xxviii. Tortfeasor: a person who commits a tort.
xxix. Res: An object, a subject matter, or a status against which legal proceedings have been instituted.
xxx. Vel non: “or not,” a term used by the courts in reference to the existence or nonexistence of an issue for determination.
xxxi. Situ: in the place
xxxii. Judicial jurisdiction over a thing: refers to jurisdiction over the interests of persons in a thing.
xxxiii. Germane: Relevant to a subject under consideration
xxxiv. Mandamus relief: judicial remedy which is in the form of an order from a superior court to any government subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty.
xxxv. Coram non judice: “before a person, not a judge,” meaning in effect that the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment.
xxxvi. Impecunious: poor
xxxvii. Dispositive: Relating to or bringing about the settlement of an issue or the disposition of property.
b. Why victims want to sue where an accident happened or near their home:
i. Convenient for witnesses, plaintiff
ii. That's the location of the injury
iii. Specific jurisdiction
c. Why Ps forum shop:
i. Might get larger awards in certain states/counties
ii. Which law might apply
iii. What the jury pool is like
· The “Full Faith and Credit” clause of the Constitution only applies “when the court rendering the judgment had jurisdiction of the parties and of the subject-matter”.
