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Civil Procedure I
Wayne State University Law School
Long, Justin R.

Civil Procedure Outline

Set of Key Values of the Law:

(1) Justice- Getting the right results for the right person

(2) Efficiency- Can we afford to do all of this?

(3) Cost- Keep cost low

(4) Equity- Fairness

(5) Accuracy

Responsibility of the Lawyer: Picking the TATICS

(1)Pick the Court

(2)Request for a Jury trial

(3) Develop the facts

Responsibility of the Client: Picking the MAJOR points

(1)Whether to settle

(2)Filing for a suit

Dividing the Responsibilities:

Lawyer-Procedural tactics and strategies

Client- All decisions were an expert is not need

Conduct of Agency for Procedurals

Federal:

Supreme Court:

-Given the power by the constitution under article III, section I for making their own procedures for operation.

Lower Courts:

(1)These courts are created by Congress, given the power in Article II, Section VIII, thru Clause IX and mentioned in Article III, Section One Therefore, if they can create you then they can control you.

(2)However, Congress did not want to regulate the lower courts that they created (They created them with statutes).

(3)Therefore under USC 2071 Congress told the lower courts they can prescribe rules of procedural, however, they must give appropriate notice and an opportunity for comments before prescribing the procedure. But, if the lower court finds that the rule is immediately needed they can prescribe it then hold it for comments with appropriate notice.

(4) Then the procedure enacted in the lower court must be sent to the judicial conference for review, which is a part of congress. This is so they can publish the law to the public (for consideration) and to Congress to vote on.

(5) Additionally, under USC 2072, the Supreme Court can prescribe general rules for evidence to the lower courts, but it cannot conflict with substantive laws!

Judicial Conferences Role: UCC 2073

(6) They both publish and prescribe procedures for consideration. To aid them they can make one standing committee (Rule and Procedures Committee) and other small committees made of law professionals to help. The Rule and Procedural Committee reviews the other committee’s recommendations and decided if they will help furthering justice.

(7) When the Rule and Procedural or other committees are in session it must be open to the public, minutes must be kept, and record available to the public.

-Exception: for public interest if there is a majority and in open session they can close the meeting to the public. However, they must tell the public why they are closing the meeting.

(8) If they feel that a rule should be submitted to congress for consideration they must submit with,

(1) The proposed rule

(2) Explanation of the rule

(3) A written report explaining the body’s action and other minority opinions and separate views on the rule.

(9) However, if they miss these steps it does not invalidate the rule.

(10) The Rule is sent to the Supreme Court which votes on whether it will work if passed it goes to Congress before May 1st.

(11) Congress has till December 1st to act on the proposed bill, if they do not they it becomes law.

(12) During the time between the action by congress and the usage in the lower courts it is under the Supreme Courts power.

*what congress states or alters the bill and votes in becomes law, the Supreme Court cannot alter.*

States Way of Passing Evidentiary Procedures:

Under Article 6, section 5 the Michigan Constitution the Supreme Court was given the full power to create administrative laws by voting the rule into law. (Congress does not have any of the power to create administrative laws).

Problem: How do the people control the procedures?

(1) Public hearing voicing your concerns

(2) Amend the Michigan Constitution

(3) See if they violated part of the U.S. Constitution

(4) Elect new judges on the Supreme Court

However, in McDougall Congress asserted a huge power over the Supreme Court of Michigan. Congress told the Supreme Court that under Article 6, Section 5 they still had the power of administrative laws, but, anything else must be passed by Congress. Therefore, if the Supreme Court wants to make an administrative law it cannot have anything to do with public policy, because public policy is outside the scope of administrative law. This is troublesome because anything can have public policy ties.

How to Lobby Against Procedural Law:

Federal: Petition Congress

State: Vote out the judges or attach it to public policy

Reasons to Sue and Remedies

Amount of Litigation: The courts have a great deal of efficiency; therefore, there is not a lot of litigation.

-The majority of litigation is done in the state court.

-Two types of litigation

(1) Criminal

(2) Civil

-Hybrid Cases: Family (civil) and juvenile (criminal)

Civil Type of Litigation:

This is the majority of litigation because of the growing population and the chance of getting a large verdict brings people to sue.

-No civil case type has a higher rate, due to context to go to trial than any other.

(1)Bench Trials (fast…no question of fact)

(2)Jury Trials (slow)

Why Litigate?

People want to know what they can get out of a lawsuit.

The person will file a lawsuit; get a judgment, if the defendant won’t pay a post judgment.

What are Remedies?

Two types:

(1) Subsitiutory: To give the plaintiff a reasonable substitution for what the defendant has taken.

-This is the most common form with the usage of money.

(2) Specific: Restore directly and specifically that, of which, the defendant has taken from the plaintiff.

Specific Remedies:

(1) Repevin: A court order requiring a return of the item

(2) Injunction: court order directly to the parties, commanding them to do or not to do something

16th and 17th Century Courts:

Court of Chancery: Equitable Remedies

Forms of Equitable Relief:

(1) Injunctions: Enforce by contempt consequences.

(2) Constructive Trust: Stop a person from gaining from there wrong

(3)Rescission/Cancellation/Reformed: Stop a cont

ty pays their own legal fee. The attorney fee comes out of the clients pay, so, it could be considered that the plaintiff is “less then whole”

àLower merit claims, which makes this theory supported by wealth plaintiffs, and a higher degree of this type of litigation.

Good:

(1) It allows people with uncertain cases to pursue litigation, without fear of having to pay the other side’s cost.

(2) Promotes the constitution because people can bring lawsuits that may be unpopular but are right under the constitution.

Encourages: “Law reform”

-Law Reform: changing the law for the better of society

Discourages: Meritorious low damage suits

(2)English Rule: The losing party pays both parties cost. The poor would advocate for this type of system.

àHigh merit, low net worth claims, and a large deal of litigation from this type.

Encourages: Strong merit but low damage cases

Discourages: High-cost “law reform” suits, because people don’t want to pay both sides if they lose and a law reform is hard to do.

Public Pays/Non-Profit:

American Rule: This is better supported because they do not have to pay the other parties fee…they know how much they will have to pay.

English Rule: The courts want people to bring both civil rights and class action suits, therefore, if the plaintiff loses then they won’t have to pay the defendant’s court cost, however, if the plaintiff wins then there court cost will be paid by the defendant. The court did this because the benefit is for all of societies…not as in a private were only the one person wins.

-The cost of the plaintiff is they lose is paid by the public through taxes.

Ways to Pay if You Can’t Afford

Insurance:

-If a person has insurance the insurance company pays for their legal representation.

Contingence Fee:

-This is when the party will pay for the litigation from the settlement, if they win

-If the party loses then the attorney does not collect.

Pro: More cases will go to trial

Con: If a person wins the contingency fee will be higher because they have to pay for the case the attorney has lost.

Public Subsidies and Professional Charity:

-When a person has a low merit claim compared to cost and no personal money to finance.

Three different types:

(1) Pro-bono (attorney works for free or a discount)

(2) Institutionalized support for the poor by the rich.

(3) Hybrid system (atty works for free and institutions pay for client needs and court cost).