Prof. Carlson for Civil Procedure A Fall 2013
Unit 1: Overview of Courts and Introduction to the Process of Law
A. Overview of Courts and Introduction to Process
1. Procedure ensures the fairness of the litigation process, To insure Justice, Truth, Dignitary/participatory value, Legitimacy and Cost
2. The Incentives to Litigate:
i. Why: The P usually wants something from the D
ii. Most civil disputes are about money or something of economic value
a. Keep in mind that for recovery of money, you might not get as much as you want, especially going to trial instead of settling.
iii. But keep in mind that going to trial is very expensive and very few cases go to trial and it takes a long time to get to trial
a. The national average is about 3% of cases go to trial with about 70% of those trials coming before a jury and 30% before a judge.
b. When it is a contracts case that goes to trial, most are tried to a judge (called a bench trial), while 90% of tort cases that reach trial go before a jury
c. Bench trials are a bit easier to schedule and usually a little faster than jury trials. The mean time to a judgment in a jury trial is about 21 months, while for jury trials (which are dominated by Torts) it takes about 27 months. The process of the actual trials lasts between for jury trials about 4 days while for bench trials this is about 2 days.
3. What the Constitution says about the Courts
i. Cons. Art III establishes the Judiciary and its powers
a. Art III, section 1 specifically creates the US Supreme Court and gives congress the authority to create the lower courts. creates the US Supreme Court and gives congress the authority to create the lower courts. Judges in both Supreme Court and inferior courts shall receive compensation for their services
b. Art III, section 2 Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties. Also all cases affecting Ambassadors, other public Ministers and Consuls, admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
c. Art III Section 2 Clause 2- Original/Appellate Jurisdiction of Supreme Court: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
ii. Const. Art. I § 8, cl. 9 creates tribunals
iii. Const. Art. IV § 1 “full faith and credit” = the duties the states have to respect the public acts, records, and judicial proceedings of every other state
4. Other rules
i. 28 U.S.C.A. § 41 – lays out all the 13 districts
ii. 28 U.S.C.A. § 133 – the number of district judges
iii. FRCP Rule 1 –They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.
iv. M.C.L.A. Const. Art. 6, § 5- “Court rules; distinctions between law and equity; master in chancery” Sec. 5. “The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state. The distinctions between law and equity proceedings shall, as far as practicable, be abolished. The office of master in chancery is prohibited.”
5. The Structure of the Courts
i. Supreme Court: This is the highest court in the federal judiciary. There are two levels of federal courts which is the trial courts and the appellate courts
ii. District (Trial Courts): US district courts are the trial courts of the federal court system. The district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. Two special trial courts that have nationwide jurisdiction:
a. Court of International Trade
b. U.S. Court of Federal Claims
iii. Appellate Courts: The 94 judicial districts are organized into 12 regional circuits, each of which has a U.S court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and U.S. Court of Federal Claims
6. The Difference between the Federal and State courts:
i. Federal court system:
a. Structure: Article III of the constitution invests the judicial power, Art III, section 1 specifically creates the US supreme court and gives congress the authority to create the lower courts. Congress established 13 court of appeals, 94 US district courts, US court of claims, and the US court of international Trade, and US bankruptcy courts. Parties dissatisfied with a decision with the district court or the US court of claims, and the US court of international Trade, and US bankruptcy courts can appeal to US court of appeals. A party may ask the US supreme court to review a decision of the US court of Appeals, but the Supreme court usually is under no obligation to do so. The Supreme Court is the final arbiter of federal constitutional questions.
b. Selection of Judges: Art. II Section 1 states that Federal judges are nominated by the president and confirmed by the senate. They typically hold the position for life, but they could be removed from office through congressional impeachment proceedings.
c. Type of cases heard: Cases that deal with the constitutionality of a law; cases involving the laws and treaties of the U.S.; Cases involving ambassadors and public ministers; disputes between two or more states; admiralty law; bankruptcy and Habeas corpus issues.
ii. State Court system:
a. Structure: The constitution and laws of each state establish the state courts. A court of last resort, often known as a supreme court is usually the highest court in a state. Some states also have an intermediate court of appeals. Below these appeals courts are the state trial courts, some are referred to as circuit or district courts. States also have courts that handle legal matters such as a probate court (wills and estates), juvenile court, family court etc. Parties dissatisfied with the decision of the trial court may take their cases to the intermediate court of appeals. Parties have the option to ask the highest state court to hear the case. In addition, only certain state court cases are eligible for review by the U.S. Supreme Court.
b. Selection of Judges: State court judges are selected in many different ways: election, appointment for a given number of years, appointment for life, combinations of these methods (appointment followed by election for example)
c. Type of Cases Heard: Most criminal cases; probate (involving wills and estates); Most contract cases; tort cases (personal injury); family law (marriages, divorces; adoptions etc). State courts are the final deciders of state laws and constitutions. Their interpretations of federal law or the U.S. Constitution may be appealed to the U.S Supreme Court. The Supreme Court may choose to hear or not to hear such cases.
7. Michigan Judicial System
8. Tribal Courts
i. O’Connor Reading=
a. Issues related to the family, and to the control of natural resources such as land, water, oil, fish, and timber, are of particular interest to the tribal courts, both because important tribal traditions are implicated and because these issues have a vital and recurring impact on the welfare of the community.
b. Tribal courts today face significant challenges. They must work to satisfy the sometimes-competing demands of those inside and outside the tribal communities. But while the challenges are great, the effective operation of tribal courts are essential to promote the sovereignty and self-governance of the Indian tribes. To fulfill their role as an essential branch of tribal government, the tribal courts must provide a forum that commands the respect of both the tribal community and the non-tribal community including courts, governments, and litigants. To do so, tribal courts need to be perceived as both fair and principled. And at the same time the courts seek to satisfy these conditions, they must strive to embody tribal values–values that at times suggest the use of different methods than those used in the Anglo-American, adversarial, common-law tradition.
c. Special strengths of Tribal Courts: their proximity to the people served, the closeness of the relations among the parties and the court, and their often greater flexibility and informality. As a result, this gives tribal courts special opportunities to develop alternative methods of dispute resolution.
d. In compared to state and federal courts: Tribal courts often act more quickly, and more informally, than do their counterparts. The factors considered to reach a decision, the procedures used, and the punishment or resolution arrived at, may differ in reflection of tribal values. Tribal court judges frequently are tribal members who seek to infuse cultural values into the process. The development of different methods of solving disputes in tribal legal systems provides the tribal courts with a way both to incorporate traditional values and to hold up an example to the nation about the possibilities of alternative dispute resolution…While tribal courts seek to incorporate the best elements of their own customs into the courts’ procedures and decisions, the tribal courts have also sought to include useful aspects of the Anglo-American tradition. For example, more and more tribal judicial systems have established mechanisms to ensure the effective appealability of decisions to higher courts. In addition, some tribes have sought to provide tribal judiciaries with the authority to conduct review of regulations and ordinances promulgated by the tribal council.
e. While tr
Contingent fees- the lawyer typically agrees to represent the client with the fee to be paid from the proceeds of any settlement or recovery. A standard contingent fee arrangement might award the lawyer 20% of the settlement reached before suit, 25% if the suit is filed, 33% if it goes to trial and 50% if it goes to appeal.
1. Lawyers must take into account the probability of wining (as they only get paid if they win), take into account fees from successful cases must be higher to cover the expenses incurred in unsuccessful cases.
2. Thus, when using the contingent fees the lawyers are doing a substantial investment. For example: Lawyers may use a meritorious claim as a collateral for an ordinary bank loan.
c. Alterative Litigation finance –
1. Consumer Lending : One group lends directly to clients (which is the P’s in personal injury cases) giving them immediate case in the form of a loan that will not be collected if the borrower does not collect from a judgment. The total repayment will never exceed the amount collected from the judgment or settlement. 326
2. Lawyer Lending: This group lends to lawyers only (not the clients) and lawyers may use this to pay for their bills as they wait for the recovery to come in; they may use it to invest more in a case for deeper preparation.
3. Direct investment in Commercial claims: This invests directly to the lawsuits themselves. This is typically in major commercial litigation. See 327-328 if needed
d. Fee shifting- making the other side pay for your fees and costs to the lawyer or making others (even on your side) to contribute the fees
1. Common Fund- P brings a lawsuit that benefits him, but in the process he also benefits other similarly situated persons. Those other people who are benefiting must also contribute to the lawyer fees. Thus, the common fund shares fees among similar situated persons rather than shifting them to the opposing party in a lawsuit.
2. By contract- fee shifting by contractual agreements, parties to contracts may provide that if litigation over the contract arises the loser will pay the winner’s legal fees.
3. By Common law- there are exceptions to the American Rule. See 335
4. By statute – the statutes not allowing fees to shift, courts may have discretion to award a prevailing party fees see 336 for more info if needed
b. Note: In the US individuals can prosecute their cases themselves (called pro. per or pro se meaning “in his or her own person” or “for himself or herself”.) but it is better to hire lawyers because they know their way around the procedural system. p2-6
c. The tactics the lawyer has to consider: what court to sue in, whether to request a jury trial, how to develop the facts of the case, what evidence to present in what order and more. The lawyer must keep his client informed about these matters p2-6
ii. Figuring out the proper court
a. As a lawyer you want to pick out the jurisdiction that will lead to the greatest advantages and fewer disadvantages
b. Personal Jurisdiction: Does the court have authority over the parties? A court cannot exercise power over the defendant unless the state in which that court sits has some connection with him or with the accident that gave rise to peter’s claim (pages 5-6)
c. Subject Matter Jurisdiction: Does the court have the authority to hear this issue? Article III of the U.S. Constitution limits the subject matter jurisdiction of federal courts.
iii. What kind of remedies do you want?
a. Remedies “cure” a legal harm. Note: Lawyers often base their decision to take a case based on the amount of potential damages that the plaintiff could get (see above). There are two groups for remedies.
b. Substitutionary remedies =Those that seek to provide the plaintiff with a reasonable substitute (ex: somebody takes your car, you sue them and the judgment would be that they give you enough money to buy a equivalent car)
c. Most seek money damages however there are some difficulties in measuring how much money should be paid. This can be difficult to measure because there must be proof and evidence (these claims must be made in the pleadings stage as discussed below)