CIVIL PROCEDURE II OUTLINE
SPRING 2010
COOPER
INTRODUCTION
§ About 98 % of civil litigation in the US occurs in State Courts (b/c federal courts are courts of limited jurisdiction)
§ Only 3 % of cases actually go to trial
§ Policy for Civil Procedure is one that involves tradeoffs between speed & quality
§ Torts, though less than half of filings, comprise 2/3s of trials
§ In tort trials, 51 % of Defendants win; but in K trials, plaintiffs win 62 % of the time
§ When contract cases go to trial, most are tried by a judge (bench trial) whereas most tort cases that go to trial are tried by a jury
§ Court filings in the U.S. are about evenly divided b/w civil and criminal
§ Civil lawsuits in the U.S. have increased over the last few decades and have grown faster than the population
Examples:
1) You walk into a courtroom in a big U.S. city. A civil jury trial is in progress. Without knowing more you can make a good guess about what kind of case it is. Explain.
a. Odds are it is a tort case (2/3s go to trial and also most tort claims are tried by jury trials).
2) You walk into another big-city courtroom, where another civil trial is underway, this one before a judge without a jury. You can be pretty sure of what kind of case it is, who will win, and make a prediction about how much the judgment will be for. Explain.
a. Odds are this is a contract claim (bench trial). Odds are, if it is a contract claim, that the Plaintiff will win (P’s win 62 % of contract claims). The judgment will be somewhere around $48,000 (the median judgment for a contract claim)
3) Legislation is introduced to streamline litigation by reducing the amount of time spent in jury selection. Explain why the legislation will have no effect on the time of disposition of an average case.
a. Only 3 % of cases go to trial. Thus, this may save a couple of hours in 3 % of cases. This will not reduce the docket and will not make cases be resolved quicker.
4) State court administrators and judges, staggering under heavy caseloads, sometimes oppose federal legislation that would limit federal diversity jurisdiction on the grounds that state courts already have too many cases and the “dumped” federal cases would overwhelm them. Explain why this argument is weak.
a. State courts already have the overwhelming majority of cases anyway (only 2 % of cases go to federal courts)
THE AMERICAN & ENGLISH RULES & TYPES OF FEES
Rule/Practice
Who Pays Fees?
With What Incentives
English
Loser pays winner’s fees (losing party pays both its own fees and those of the other side)
Encourages strong but low-damage cases. Discourages high cost “law reform” suits
American
(Exceptions to American Rule include: (1) statute provides attorney’s fees such as Civil Rights Statute; (2) Contract provides loser pays; (3) or bad-faith CL doctrines such as malicious prosecution)
Each party pays its own fees
Encourages “law reform” suits. Discourages meritorious low-damage suits
Examples:
1) Andy has a claim for $1000 arising out of a dispute with a merchant. A competent lawyer estimates that Andy’s claim has merit but that handling the claim in even the most economical way will cost $1500. What will Andy do?
a. Andy will not hire an attorney. At best, he loses $500. This problem illustrates that the American Rule and the cost of litigation imposed on the plaintiff will sometimes lead to an otherwise meritorious claim not being brought due to economic reasons.
2) Irma’s Grocery is a small family business that does not carry liability insurance. One day, Irma receives a summons and complaint from a customer who alleges injuries from a slip and fall. Irma remembers the episode and strongly doubts the customer was injured at all, much less seriously. But when she consults an attorney she learns that it will cost perhaps $7000 to defend the claim. The Plaintiff’s lawyer tells Irma his client is willing to settle for $1500. What will Irma do?
a. Irma will probably settle the case b/c it is the economic thing to do. This problem illustrates that the costs of litigation sometimes produce nuisance settlements.
Types of Fees
· Contingent Fee à lawyer agrees to provide legal representation, with the fee to be paid from the proceeds of any settlement or recovery (i.e. 20 % if settlement reached before suit, 25 % if suit is filed but no further steps taken, 33 % if goes to trial, and so on)
o Pros à Client gains assurance that he/she will not suffer out of pocket expenses (client risk no loss but may gain). Lawyer also has an incentive to obtain highest settlement or monetary outcome possible.
o Cons à Contingent fees cause the successful clients to bear part of the costs attributable to the unsuccessful clients
· Hourly
o Incentive for lawyer to run up hours to get larger bill.
· Flat Fee
· Hybrid
PLEADING
History of Pleadings
o Common Law Pleadings (1200-1850) à Complaint had to fit specific formula; complaint had to speak in specific way to call the courts and get their attention/jurisdiction. Formula had to be recited even if facts of what happened did not match formula. Formula revealed little about actual facts.
o Advantages of this system were that a lot of pleadings got kicked out at pleading stage b/c formulas not satisfied by Court. This was good for resolving and getting rid of frivolous or near frivolous complaints and also keeping a short docket.
o Code Pleadings (1850 – ) àEmphasis on facts. Problem was Plaintiffs frequently did not have all the facts they needed when they drafted the complaint. Further, little flexibility b/c P had to state specifically cause of action.
o Notice Pleading (1938 – ) àprovided in Federal Rules of Civ. Pro. Purpose of pleading under FRCP is to give other parties notice of what claims and defenses are being raised.
o In this system, getting past pleading stage is fairly easy. Serious downside is that some unmeritorious cases last longer than they should.
o Notice pleading goes hand in hand with a broad discovery
FRCP 7(a) (Pleadings Allowed) àIn a lawsuit involving only 1 plaintiff and 1 defendant, a complaint, one or more answers, and if the court orders, a reply to an answer is allowed
o Note: In cases involving add’l parties, FRCP 7 allows the parties to allege their claims and defenses in add’l pleadings
FRCP 8(a) (General Rules of Pleadings) àPleading must contain:
o a short and pl
, the defense attorney is likely to say that these two cases set a new standard and court should do this analysis, and thus if factual allegations even taken as true don’t create plausible claim for relief, then complaint should be dismissed. Plaintiff lawyer is going to say Twombly and Iqbal are special cases and didn’t overrule anything (i.e. Twombly only relates to Antitrust cases or at minimum cases with large discovery and that Iqbal only applies to high government official cases).
FRCP 10 (Forms of Pleadings) à
o Every pleading must contain a caption indicating the name of the court, the title of the action (which in the case of the complaint must include the names of all parties, but in subsequent pleadings need only state the 1st plaintiff and the 1st defendant), the file number assigned to the case, and a designation of the type of pleading involved
o Requires parties to divide their claims and defenses into separate statements
§ Claims and defenses must be made in numbered paragraphs and the contents of each paragraph must be limited to a single set of circumstances
§ Parties making multiple claims may avoid repeating the same facts for each claim by adopting allegations of a prior paragraph by reference
o Allows party to attach written documents as exhibits to the pleadings
o See Forms 11 & 12 for examples of complaints
FRCP 8(a) (General Rules of Pleadings) àPleading must contain:
o a short and plain statement of the ground’s for the court’s jurisdiction;
§ Federal Question – If jurisdiction is based on a federal question, the complaint typically cites the federal statute or constitutional provision involved
§ Diversity of citizenship – If jurisdiction is based on diversity of citizenship, the complaint will state the citizenship of the parties and specify that the amount in controversy exceeds $75,000
§ Supplemental Jurisdiction – If jurisdiction is based on supplemental jurisdiction, the complaint should indicate the claim in the suit to which the claim in question is supplemental and specify that the claim in question forms part of the same Art. III case as that other claim.
o a short and plain statement of the claim showing that the pleader is entitled to relief; and
o a demand for the relief sought
o
FRCP 7(a) (Pleadings Allowed) àIn a lawsuit involving only 1 plaintiff and 1 defendant, a complaint, one or more answers, and if the court orders, a reply to an answer is allowed
o Note: In cases involving add’l parties, FRCP 7 allows the parties to allege their claims and defenses in add’l pleadings
