Civil Procedure I Outline
Professor Heiser – Fall 2010
Introduction to Civil Procedure
Goals and Purposes
1. Settle and terminate conversations.
2. Decide who is right and who is wrong and provide state-enforced forms of relief.
3. Courts apply and create law
Create both substantive and procedural law.
The Adversary System
Reasons Supporting System
Reflects certain cultural values in our society – competition and individualism
Adversaries defend their own side
Distrust of government officials
Judge does not run trial, mostly passive.
Fairness and equality
Parties accept the result when finished
Efficiency
Infatuation with games – lawyers treat civil litigation as a game
Party-Presentation – parties are responsible for facts in litigation
Party-Prosecution – The parties move the case along through trial.
Problems
Disparity of legal representation – cases are usually imbalanced by resources.
Depends on people being honest – system creates dishonesty
Sometimes the system does not result in justice
Overzealous representation by lawyers
Expensive
Depends on having competent counsel and judges
Why do we have it? It best reflects our cultural values.
Sources of Procedural Law
Positive Law – constitutional provision, statute, or court decision
Procedural law – meant to be neutral, but it actually represents a trade-off of various interests
Primary source – Constitution
Federal and State
Federal courts – limited jurisdiction
US Constitution – Article 3, Section 3
Congress can limit what federal courts can hear to anything except what is included in the Constitution.
USC §1331: Federal Question – district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of US
USC §1332: Limits civil cases to ones where the amount in controversy is over $75,000
Article IV – Full faith and Credit – states have to follow other states laws
Article VI – federal law is supreme to state law
Article V and XIV – due process laws
Federal Sources
US Constitution
US Statutes
Rules of Court: Federal Rules of Civil Procedure (FRCP)
Local Rules of Court – each individual district court may have their own rules
State Sources
US Constitution
State Constitution
State Statutes – Code of Civil Procedure (CCP)
State Rules of Court
Court Systems
Federal Courts
US Supreme Court
Courts of Appeals
US District Courts
State Courts
State Supreme Court – only cases that have right to appeal to this court are death penalty cases.
Court of Appeals
Superior Court
May decide cases that involve federal law
Diversity cases may be decided in state or federal court
Decided by plaintiff
The Civil Litigation Process
1. Preliminaries
Get a lawyer to give professional advice
Lawyer will make a thorough investigation of the facts.
Interviews and inspections of records
Lawyer determines if anyone has legal responsibility – consult substantive law
2. Which Court? Territorial jurisdiction, subject matter jurisdiction, and venue
Obtain territorial jurisdiction
Subject matter jurisdiction – what type of case the court is empowered to hear
Diversity statute – dealing with parties from 2 states
Matter of due process (fairness)
Federal question – when the issue in trial is based on a federal question
Venue
State courts – for a tort suit for personal injury, venue is proper where the defendant resides or where the injury took place.
Federal district court – venue is where a substantial part of the events which gave rise to the suit occurred (if 2 different courts for plaintiff and defendant)
3. Drawing up the complaint, filing, and service of process
Draw up the complaint – designed to tell the defendants what it is that entitles him to recover
Helps guide the court as it proceeds with the case.
Describes who the plaintiff is, who the defendants are, what he claims happened, and what he wants the court to do.
Called allegations
Rules of pleading – rules governing the form and content of the complaint.
Files complaint with Court – suit is officially commenced
Along with complaint, forms of summons are filed.
Plaintiff must serve the summons to notify defendants
4. Responding to the complaint – get a lawyer
A. Preliminary objections – defendants may have objections to the suit.
1. Can challenge the lawsuit to be heard – motion to dismiss. Don’t sustain a claim under substantive law or territorial jurisdiction
2. Just keep the ball rolling
Some objections have to come with the first filing of the court
Made on notice – court and other parties are advised in writing of their intentions
Will typically be accompanied by a memorandum of law and affidavits
Plaintiff will respond with its own memo of law and affidavits, and may request discovery.
B. Default and default judgment – if a defendant failed to do anything, the plaintiff could say the defendant was in default after a certain time period and would apply for a default judgment
They would conduct an ex parte hearing on the question of the amount of damages
Would end the action
Defendant could motion to set aside the judgment
C. Pleading in response to the complaint – the complaint must describe the claim in sufficient detail to give the defendant fair notice of the nature of the claim being asserted – “insufficient in point of form”
Defendant may have objections in point of substance
Failure to state a claim upon which relief can be granted – even if true, not entitled to recover
The Answer – defenses in point of fact
Defendant must be careful to deny allegations they wish to contest
Denials are negative defenses, may also have affirmative defenses (matters of avoidance)
Plaintiff may make a motion to strike the defenses as insufficient
Plaintiff may have a reply – to deny the defenses (many cases unnecessary)
FRCP, Rule 11 – when you sign something you certify the document is in good faith.
Possible to seek to amend the answer
Pleadings are closed
5. Discovery, summary judgment, and settlement
Discovery – the procedures through which each side investigates its own claims and those of its opponent/gather facts
The parties must try to agree upon a plan for the conduct of discovery
3 forms – interrogatories, requests for production or inspection, and depositions
Interrogatories – written questions to the other side, which they must disclose
Request for production of documents and things and entry upon land for inspection.
Deposition – one party may require witnesses to appear before a court reporter and answer questions put to him by lawyers of both parties.
Includes expert witnesses
Summary judgment – judgment rendered on the basis of a paper record and without trial.
There may be some fact crucial to the lawsuit that can be established as true
Other side must file a counter affidavit
Settlement – saves cots of further litigation and eliminates the risk of an extreme outcome
May have pretrial conference – determine whether there are any required amendments to pleadings, inquire about the possibilities of settlement. Put the case in final shape for trial.
6. Trial
Decide if jury trial – action at law is triable to a jury on demand of either party (as opposed to an injunction is in equity and is normally triable to the judge)
Select jury (voir dire examination)
A juror with bias will be challenged for cause
Peremptory challenges are for when one party doesn’t want to give reasons to reject
Jury is sworn in and the court is impaneled
Opening statements – explains what the case is about and what the parties expect to prove.
Plaintiff goes first
Defendants may wait until plaintiff puts in evidence
Plaintiff presents his case in chief
Direct examination done by plaintiff, cross-examination done by defendants
Judgment as a matter of law – request by defendants to judge that they dismiss the claim without submitting to jury
Defendants present case in chief
Plaintiff makes his closing argument and then defendants make closing/rebuttal argument.
Judge instructs jury, who then retire for deliberation
Render a general verdict or, if requested by lawyers, a special verdict.
Clerk enters judgment – formal order disposing of the case
7. Post-trial or post-judgment motions
Judgment notwithstanding the verdict – no legally sufficient evidence supporting the verdict winner, and that the court should declare victory for the verdict loser.
Motion for new trial – if too many errors in the trial
8. Appeal
Loser may appeal
1. May only be taken after final judgment
2. An appellate court is supposed to correct errors, not render a more just result.
Reversible error occurs when the mistake of law affected the outcome
Harmless error – appellate court won’t do anything about it.
3. Appellate courts do not review lower court decisions on matter of fact, but matter of law.
4. Appellate court will only consider objections that were first presented to the trial court.
Appellate court will not consider anything not contained in the record presented to it.
Judicial Remedies
1. The nature of judicial remedies
The law of judicial remedies defines the nature and scope of the court-ordered relief available to a plaintiff who can demonstrate that they have a valid claim under the applicable substantive law.
The nature and scope of remedy awarded is closely tied to the specific goals and policies of the underlying substantive law.
It is the court’s best effort to vindicate the substantive right at issue.
Substantive impact of law of remedies extends beyond courtroom
2. Plenary vs. Provisional Remedies
Plenary remedies (final remedies) – awarded at the end of the lawsuit/trial
Compensatory and punitive damages
Injunctions
Declaratory judgments
Provisional remedies – may be awarded at any time when the lawsuit is pending, while waiting for the completion of trial.
Attachment (seizure of property to prevent its destruction, dissipation, or transfer during litigation)
Temporal restraining orders and preliminary injunctions – aimed at stopping ongoing harmful conduct while lawsuit is pending.
3. Compensatory Damages
A. Tort Cases – make up a high percentage of the civil caseload of American courts.
Damages (money) – primary remedy
Only remedy for serious personal injury that has already occurred
Most efficient for relief in cases of economic loss that have already transpired.
Difficulty – how to measure and collect, many factors
Attorneys’ fees are not compensatory damages – not relieved by jury
Compensatory damages – damages intended to make a party whole for harm suffered.
Determined by substantive law
Awarded in lump sum that encompasses both past harms and those anticipated to flow from defendant’s conduct in the future.
Serve a de
able) Relief: Injunctions
When a defendant is ordered to perform, or refrain from performing, a specific act.
Usual means by which specific relief is provided.
Consequences:
1. Because the injunction derives from equity, the tradition is that whether and on what terms an injunction may issue is a matter of “discretion” of the court.
2. The determination of facts relevant to issuance of the injunction is for the judge and not a jury.
Link between injunction and equity is historical rather than logical
Common law awarded only remedy of damages.
Parties seeking specific relief had to go to equity courts.
Enforcement of injunctions
A defendant who fails to obey an injunction may be held in contempt.
Contempt can result in a fine or imprisonment.
If a person fails to pay remedies/damages, the plaintiff must discover and attach defendant’s assets through proceedings in execution of the judgment.
May eventually culminate in an order directing defendant to place his property at the disposal of the court for judicial sale.
This is an injunction which can be enforced by contempt.
Because an injunction imposes unusual restrictions on a defendant’s liberty, it may only be obtained in “extraordinary circumstances.”
Only when legal remedies are “inadequate.”
To prevent physical injury to individuals, or reduce threat of injury.
Prevent physical trespass
Specific performance decree – an injunction in contract suits to obtain specific performance
Formal doctrinal requirements for the issuance of injunctions
Law embodies a preference for specific relief if plaintiff wants it.
Damages are inadequate unless they can be used to replace the specific think that the plaintiff lost.
Structural injunctions – fundamentally restructure some governmental entity or operation.
Damage relief is not usually practicable. Harm is irreparable in the normal legal sense of not being susceptible to adequate remedy by monetary payment.
“Judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.”
7. Restitutionary remedies: Constructive Trusts, and Rescission or Cancellation
Remedies to prevent “unjust enrichment” of the defendant
Involve an award of money to the plaintiff, measured by the defendant’s gains.
Constructive Trust – imposed on property to which defendant has title but which in justice belongs or ought to belong to plaintiff.
“Constructive trustee” is ordered to convey the property to the plaintiff.
Rescission or cancellation of a contract – because of a mistake, fraud or other recognized ground, one party has the right to withdraw from the contract, may seek judicial authorization for a rescission of contract.
Provides for restoration of payments made
8. Other Equitable Remedies
A. Reorganization of financial affairs – equity affords remedies to straighten out entangled business transactions
B. Suits to determine title to land – used to provide remedy to settle and protect interests in land that could not be determined in ejectment, such as rights in easements and rights based on equitable title.
9. Declaratory Relief
Declares the legal rights of the parties, without any other relief
Ex – a party who fears a lawsuit from someone else based upon something he has done or intends to do – enables the plaintiff to obtain a judgment declaring that he or she is not liable.
Chief prerequisite is a real showing that the plaintiff is at serious risk of adverse consequences unless the court declares him non-liability.
Courts have been wary that the remedy would allow parties to apply for gratuitous judicial advice on legal problems that trouble the parties but have not yet ripened to full-scale legal disputes.
10. Provisional Remedies: Attachment
A judicial order, obtained at an early stage of litigation, designed to stabilize the situation pending the final disposition for the case, or to provide security to plaintiff so that if she succeeds in obtaining judgment she will be able to enforce it effectively.
Seizure of property (attachment)
Temporary and preliminary injunctions
Awarded on the basis of a less than thorough investigation than is possible prior to the issuance of a plenary remedy.
Because risk of error is higher, the party seek
