Civil Procedure I Outline
Professor Lawson
Chapter I. A Survey of the Civil Action
I.The Concern and Character of Civil Action
A. Judicial Process: Controversies between parties resolved through procedure
1. Judicial process deals with actual controversies between real parties.
2. The community will direct its collective force to the resolution of these controversies
3. Resolution proceeds according to some standards of general application
4. These standards follow procedure
B. Substantive and Procedural
1. Substantive: Creates, defines and regulates the rights, duties and powers of parties. Torts and Contracts deal with substantive rights and duties that regulate relationships between parties and define the standard of liability in a particular case.
2. Procedural- rules that give steps for having rights or duties judicially enforced. The most distinctive element of the procedure for resolving legal controversies is the adversary system:
a. A truer decision is reached as a result of a contest between two parties.
b. The parties should bear the major burden of the time and energy required.
c. Setting up sides makes it easier to answer decision yes or no in a lawsuit
Ex: Statute of Limitations- determines the length of time a party has to sue on a claim (both procedural because it answers “how much time” but also substantive because it is a product of public c policy and will affect plaintiff’s ability to recover, as a “substantive” part of law.
C. Civil v. Criminal Cases:
1. Criminal Cases, one party is always the government and it must be proof beyond a reasonable doubt.
2. Civil cases are between two private parties arguing legal rights. Proof is more probable than not.
D. U.S. Adversary System
a. Courts of Equity – Remedy in front of judge, not right to jury trial
b. Courts of Law – Getting remedy in front of jury
c. Judge is just a referee, except when judge tries to encourage settlements – which is best. (95% get settled)
II. An Outline of the Procedure in a Civil Action
A. Person choosing to sue must weigh these matters:
1. Potential litigant must consider whether the grievance is one for which the law furnishes relief.
2. Must consider possibility of winning a lawsuit
3. Will what is won be worth the time, effort and expense it will cost and weight alternatives to suit? Example, Aikens, Beasely, Cecil auto accident
4. Also look at alternatives to the suit, arbitration, settlements, etc.
B. Selecting a Proper Court- The litigant must determine in which court to bring the action.
1. Must have jurisdiction over the subject matter, court must have jurisdiction over the subject matter, the constitution and statutes under which the court operates must have conferred upon it power to decide this type of case
2. Court must have jurisdiction over the person, the person must be subject or amenable to suit in the state in which the court is located
i.
ision of the federal courts, but also reviews the decision of state courts that turn on an issue of federal law. (Fed. Courts have limited jurisdiction)
– What kind of cases can be handled federal?
a. Diversity of citizenship claims, where neither party resides in the same state
b. Amount of money at stake is more than $75,000
c. When federal law claims are involved in the case
* Federal Law Diversity Jurisdiction – If case involves $75,000 and parties are from different states, case can be tried in federal or state court.
C. Commencing the Action
1. Service- notice of an action or suit that is being brought, physical service, could be a substituted service given by registered mail or via newspaper, however these rarely hold up
2. Summons- directs D to appear and defend the complaint under penalty of default, identifies court, parties’ names, signature of court clerk and court seal, document at clerk’s office. (Form page 178 of Supp.)
D. Pleading and Parties
1. Complaint- first of the pleadings that is attached to the summons, a written statement that may vary as to the specific details given. Ex: p. 183 (Supp.) – may be amended
Serves 3 objectives:
