CIVIL PROCEDURE NOTES
Definitions
(1) civil cases: usually involve disputes between private parties, in which the P seeks to recover a remedy from the D.
(2) adversary system: each side to a dispute presents its case vigorously, in the best light possible.
Assumes parties are motivated by self-interest will only pursue worthwhile litigation and will invest time and resources to present their positions well.
Assumes parties will attack the issue in such a way as to enhance the possibility of finding the truth and reaching a just result.
Sides may not be equal
Truth will come out (because they are investigating more thoroughly)
Substitute for our vindictiveness
Judges take a more passive role
(3) Standing: has suffered some injury. Person must have standing in order to bring about a lawsuit.
(4) “American Rule”: each side pays his/her own attorneys fees.
Under the English Rule loser pays fees. Discourages average people from bringing suits.
(5) Negotiation: most widely used ADR tool.
(6) Mediation: negotiation through a 3rd party. Helps parties find common ground.
(7) Arbitration: resolution of dispute by a 3rd party other than the Court. Quicker than litigation. Less formal than litigation. No jury. Can come in with offers, or arbitrator may fashion what seems fair.
(8) Federal Rules of Civil Procedure: abolished the separate “equity” and “law” courts, and provided for a single form of action (a civil action) in 1938.
(9) Preclusion doctrine: prohibits parties from re-litigating issues already decided.
(10) joinder devices: delineate plaintiff’s abilities to join co-plaintiffs and multiple defendants in a single proceeding.
(11) substantive law: creates rights and duties
(12) procedural law: method by which we enforce substantive rights. Procedure is power.
(13) subject matter jurisdiction: whether court has authority to hear a type of case.
(14) personal jurisdiction: court’s authority over a thing so that its judgment is binding in respect to the rights and interests of all parties in that thing.
(15) injunctive relief: P gets a judgment in which Ds are ordered by the court to do or refrain from doing something.
D who defies the court may be held in contempt of court and fined or imprisoned until she complies.
(16) money damages: more common than injunctive relief. Courts will usually only issue injunctive relief when monetary damages are inadequate. D cannot be held in contempt if she does not pay. Burden is on person who secures the judgment to seek enforcement.
P usually attaches property which may be seized by sheriff. After notice given, property auctioned and proceeds given to judgment holder. Extra money is returned to debtor.
(17) full faith and credit clause: full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.
(18) quasi in rem jurisdiction: (1) bring lawsuit to affect title against those individuals as named. (2) seizing property in advance [this is equivalent to giving notice because the law assumes the property is always in the possession of its owner.]
Judgment in rem affects the interests of all persons in designated property.
Judgment quasi in rem affects the interests of particulate persons in designated property.
(19) holding: rule of law which is applied to the case to decide the case.
(20) dictum: statement or comment by court about rule of law that is not applicable to the case or aid the decision of the case. It is not binding. It gives an idea as to the thoughts of the court, which will give you a clue as to how they will rule in the future.
(21) special appearance: procedure that allows D to come forward in a case and contest jurisdiction without hereby consenting to jurisdiction.
In Oklahoma or Federal Courts today, you would file a Motion to Dismiss instead.
(22) answer in abatement: contesting the problem other than the merits of the case. There is a procedural error that occurs.
(23) specific jurisdiction: contacts are related to the claim.
(24) general jurisdiction: contacts are unrelated to the claim. Jurisdiction only if D’s contacts are continuous and systematic.
(25) writ of prohibition: not an appeal, but similar purpose.
(26) impleader: if I’m liable to Zurcher, then Asahi is liable to me.
(27) transient action: cause of action that you can sue upon anyplace (tort claim, breach of contract). Action follow
each other’s contentions?
-pleadings
-discovery
-adjudication
-preclusion, joinder, and supplemental jurisdiction
-appeal
-litigation alternatives
*Statute of Limitations is procedural and substantive.
*federal court cannot always overturn state court.
*criminal law can get writ of habeas corpus.
Court of Appeals can issue:
Writ of mandamus: directing someone to do something
Writ of prohibition: directing court not to do something
Writ of certiorari: discretionary, not a matter of right. Tells Court of Appeals to “send up your records on this case, we want to hear it.” Petitioner/Respondent.
*When seeking a writ of error, use the terms Plaintiff in Error/Defendant in Error.
Oklahoma Court Structure:
municipal courts
of record (Oklahoma City and Tulsa)
-appeal to criminal
not of record (Norman)
-appeal to district court
district court
have general jurisdiction
district judges elected
special judges appointed
have right to appeal to Oklahoma Supreme Court
-can assign case to Court of Civil Appeals
-can go back to Supreme Court through writ of certiorari (not a right)
-if denied…..
United States Supreme Court through writ of certiorari
*federal question jurisdiction cases were originally tried in state courts
*Congress limited diversity of citizenship cases only for amounts > $75,000
*Appellate court does not decide facts. Trial court does. Appellate court makes sure there were enough facts to come up with the decision, or the correct law was applied.
America → adversarial system
Rest of the world → inquisitorial system (judge has active role)
English Law Courts
Court of King’s Bench
Court of Exchequer
Court of Common Pleas
English Equity Court
Chancery
