ACL
A Lawsuit is: bipolar (contest between two parties); retrospective (about a set of completed events); right and remedy are interdependent; self-contained; party-initiated and party controlled
“The trial judge has increasingly become the creator and manager of complex forms of ongoing relief, which have widespread effects on persons not before the court and require the judge’s continuing involvement in administration and implementation.”
Aggregation: Aggregation promises savings by elimination, duplication and providing economies of scale.
Consistency of Aggregation: “like cases should be accorded like treatment in the interest of achieving consistent results.’
· Consistency is not guaranteed, but a single proceeding can avoid varied and different outcomes that result from separate cases brought by similarly situated people
· Aggregation = all cases will be resolved together at a certain point in time and temporal inconsistencies are avoided
Why aggregation may not be best:
· Individual litigant autonomy is lost with aggregation
· Can also upset the fee arrangement of the attorney charged with undertaking the suit
Fairness of aggregation:
· Due process concerns arise when the suit is so large that it contains many plaintiffs
o Causes a different effect on strategic choices (venue, individualized control)
· Ds face ‘averaging’ effect (all guilty, even though some may be more or less guilty then the next)
· Another issue – loss of certain individual claims or defenses
o Lost when control is seceded to group attorneys
Innovation is gained through Complex litigation
· Judicial involvement and management
· Dispute resolution as goal of civil litigation
· Combined or individual treatment
· Broad v. specific rules
· Impact of procedure on substance
o Procedure may alter substantive law
· Modeling procedures on complex cases
o Mass litigation often provided the stimulus for change to “average” cases
· Federalism concerns
o Citizens of different states involved – which state law governs?
Traditional Law Suit
· Bi-polar – it’s a two party lawsuit with winner-take-all result
· Retrospective – suits that had, as their frame of reference, the past
· Inter-dependent right and remedy – cause and effect situation (breach of K results in K damages)
· Self-contained – parties before the court define the reach of the judgment
· Party-initiated & party-controlled – the parties decided the scope of the action and when to push the action, also what issues were to be presented
Modern Lawsuit
· Amorphous
· Prospective – a focus on an on-going problem at stake
· Nature/Kind of the Remedy has changed – can no longer easily predict what remedy may be granted
· Defensive Remedial Impact
· Judge (increased control and involvement)
o Judge has moved from neutral figure to an active administrator
o ‘Judicial activism’
o Advantages – why has F.R.C.P. increased the ability for judges to take control of a case?
§ Much more litigation these days
§ Judge makes decision, able to rule from neutral perspective
§ Judge looking out for the institutional interests of the court system
· Has to keep the system flowing
o Why are activist judges dangerous?
§ Not the best thing for class action suits, want to make all participants of class action settle
· Using undue pressure on clients
§ Judges taking too much control over something that the parties should have control over
· Too much interference with the advocacy system
§ “In the rush to conquer case loads, few proponents of managerial judging have examined its side effects. Judicial management has its own techniques, goals and values, which appear to elevate speed over deliberation, impartiality and fairness.”
Aggregation Debate:
· Claims that are similar are mashed together to save time and judicial resources – this promotes consistency of results
· On flip side – saturation, too many claims; takes away the individual voice of the P; stronger cases are tainted by weaker cases
· Why aggregation?
o Individual control over cases
§ Claim gets lost in the other claims, loses power in the fact of stronger claims
· Loss of diverse opinions
o Too much combination results in the loss of litigant autonomy
Rule 20 – Permissive Joinder of Parties
(a) Persons who may join or be joined:
· (1) Plaintiffs. Persons may join in one action as plaintiffs if:
o (A) they assert any right to relief jointly, severally, or in the alternative with respect to or aris
o Situation where an existing D says, “I’ve been sued and there’s someone else who should be here. I’m going to drag that person within.”
§ D can sue another party
§ 3d Party P
· Intervention – 24
o There may be total strangers to the lawsuit – P doesn’t need them and the D doesn’t want them either
§ But, it’s possible that a total stranger to the lawsuit, may take the initiative and join, intervene within the lawsuit
· May take side of D or P
§ All of the rules at some level, look at the interests of the P
The First Rule of Joinder – Permissive Joinder (Rule 20)
· P initially designs the lawsuit
o (Original Ps and Ds)
· Rule 20(a) – Two Prong Test:
o Ps can join if:
§ (1) Right to relief has to arise out of the same transaction, occurrence, or series of transactions or occurrences AND
§ (2) Common questions or law or fact
· Pro-Defendant
o Protects Ds from unrelated proceedings
o Puts the burden on P to find relevant Ds
· Pro-Plaintiff
o Helps ensure that parties connected to the underlying events can be gathered
o Protects Ps from duplicative and costly litigation
§ Bring people of “like connections” together
§ Encouraging suit to similar people in the same
Rule 42 – Consolidation; Separate Trials
· Parties Joined in One Action – Different Actions are consolidated
· Join separate parties within an action, consolidation of different actions in a court room
· Test for Consolidation – any common question of law or fact
Related Devices for Re-sculpting the lawsuit
· Disrupting P’s Original Design
o 20(b) – separate trials
o 42(b) – separate trials of claims or issues
o 21 – misjoinder
§ allows one to add or drop a party
42(a) – consolidation of claims or issues
