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Civil Procedure I
Wayne State University Law School
Fox, Gregory H.

Criticisms and Defenses of the Civil Justice and Tort System
criticism depends largely on frivolous, high-profile cases, which don’t represent the whole of the justice system ” be careful to rely on such cases only
Croley’s “legal system isn’t available to enough people ” it’s relatively inaccessible to the middle class
Excessive damage awards – defendant’s are being “punished” instead of just compensating the victim for actual injuries suffered
·   there are caps to damages
·   tort damages are relatively low compared to the injury
·   medical malpractice is actually under-litigated
·   victims of tort injuries who recover the most = those who suffer small injuries, and those who suffer most serious injuries
Tort damages lead to high (inefficiently high) health insurance premiums
Withdrawal of certain goods and services from the marketplace (OB-Gyns) – also
·   medical malpractice is actually under-litigated
Pricing goods out of the market (health insurance)
·   true that some goods are more expensive because of law suits (health insurance) BUT Croley’s “law of conservation of accident costs” – costs don’t disappear, they just get reallocated
·   if jury verdict indicates actual risk of products, then particular products will be more expensive (chain saws, birth control) – it’s not a random sample of products that are affected
Lawyers get a disproportionate proportion of the damage awards
Frivolous Lawsuits
·   lawyers have no economic incentive for frivolous lawsuits
·   not ethical to bring frivolous lawsuits (Rule 11)
·   lawyers can face state ethics boards, sanctions, criminal liability
·   one problem faced by lawyers is that doctors don’t testify against other doctors
Leads to an overly litigious society (people recognize as injuries things they never would have sued for before)
·   part of the litigiousness is related to the fact the US has so much localized control
Taxes are higher to support the litigation
People with good claims have to wait longer because of bad claims
If state loses, everyone has to pay the damages award
·   the awards aren’t usually high, because you can’t get punitive damages
·   the government has to consent to being sued, because of sovereign immunity
Excessive Torts hinder innovation because return on research and development is lower – you have to do more testing because of torts; raises stakes for R&D
Example: Vaccines
·   makes R & D more profitable when its done right
·   all competitors in the same market have the same possible risks of litigation, therefore same costs
Juries base decisions and awards on “junk” science and economics
Macroeconomic Effects – people can lose jobs because there are less products, decreased ability for the domestic system to compete with overseas industries who don’t bear the tort costs
·   foreign countries do bear tort costs – they are subject to the same US laws as are American companies when they are dealing products in the states
Plaintiff’s lawyers chase “big ticket” cases, and don’t’ serve clients with claims of lower award potential
Stages of litigation
Pre-Filing Research
Answer Questions
What is the client’s problem?
Is this a problem that the legal system recognizes? Is it demonstrable?
Can I demonstrate that the legal system recognizes this problem? Can I prove it? At a price that I can pay?
these three questions never leave your mind. If these answer is no to either of the second two, you can’t
Pe-Discover Information Sources: Your Client + The rest of the world – the other side.
You may hire other people (especially detectives) to find what you’re looking for
legal system takes over monitoring of your case
Service of Process
officially alerting the other side that you filed the case
must be done in an efficient way (private parties are employed: Professional Process Servers physically carry the complaints to the defendants and serve them)
lawsuit isn’t consummated until D is served
us attorney is authorized by statute to accept complaints on behalf of federal employees
one can waive their right (as congress does by statutue) so a representative can receive the complaint.
clock starts running once D is served, giving D only so much time to respond
emphasizes certain facts (“I contest the facts” or “I want to add some facts”
this is required, but it is not required to come before the motion
Answer may come before or after motion
an initial response the D might make
addresses a legal issue (“You should dismiss this case
the legal system’s first opportunity for resolution of the case – “non-trial adjudication”
Does not take position on the truth/falsity of the Π’s allegation
Discovery Period (appearance of the magistrate)
Court–supervised exchange of information
Rule 26 Order – sets a timetable for the rest of the case, including discovery – rule even sets a trial date
1.      Interrogatories – questions that you serve on the other side (the other side may have a limited time in which to answer)
2.      Document Request – you request documents (specify what they are, they have to mail you copies of the documents)
3.      Taking of Depositions – talking to certain people, getting their testimonies under oath.\
·   Judge can limit these things (only 20 questions, etc.)
Both sides get to do discovery actions with each other, under supervision of the court
Discovery Disputes take the form of Discover Motions
Second Opportunity for Motion
Motion to Compel (“judge, please make other side do what we are asking”)
Discovery is what gives lawyers a bad name
“Open Discovery” in the US
Exceptions – criminal discovery is more closed (constitutional reasons why criminal defendants get to know what the state has against them. Symmetrically, the criminal D doesn’t have to give everything over to the state
Confidentiality Restraints on Discovery – “what you’re asking of me protects my proprietary interest” (Protection Order… the person of whom discover is made knows she is obligated to comply, but some of the info is personal or proprietary, if judge agrees, the other side has to agree never to disclose information or give other parties access to it
Pre-Trial Motions
Motion for Summary Judgment ( “we don’t need a trial, because there are no material facts in dispute.”) – another occasion for pre-trial adjudication
·         Either side can make this motion.
·         For each side that makes a motion, the other party has an opportunity to respond

sed in emergency situations
1)      Rationale: bad actors don’t get notice and don’t have to consent
§         Example: Domestic Violence Situations
Fuentes v. Shevin – Fuentes’ appliances were taken without appropriate notice or consent. 
in resolving what sort of process is due to Ms. Fuentes, we must balance efficiency and equity
there must be notice and a hearing, but the type of notice and hearing can vary based on the reason rights are being deprived.
Does procedural due process require the chance for a hearing before the state takes someone’s stuff? Exceptions to due process :
1)      The seizure is directly necessary to protect an important public interest. 
2)      There is a special need for prompt action.
3)      The state keeps strict control of the seizure process by having a government official make sure the seizure is necessary and justified.
Fuentes was entitled to a prior hearing. It doesn’t matter if she gets a hearing later. Why not? You must have notice and be heard before the government comes and takes your property away. You’re entitled to be heard. That’s how the Court interprets the Fourteenth Amendment.
The central meaning of procedural due process is to be heard and notified. 
o       1 Purpose – is to ensure abstract fair play to an individual
o       2 Purpose – is to protect use and possession of property from arbitrary encroachment
Procedural due process
Before the government can take your stuff, you must have notice, and you must have a hearing of some sort. That’s procedural due process. You can choose not to take advantage of that right if you want. The purpose of all of this is that we want to make sure that we don’t wrongfully take Fuentes’s property. Even short-term deprivation of Fuentes’s property is bad.
Not every pre-hearing seizure requires notice plus a hearing. What are the exceptions?
1)      There must be an important governmental or general public interest,
2)      there must be a special need for prompt action, and
3)      it must be initiated by the government itself. 
This is sort of a factor test and not necessarily a three-prong test.
due process protects temporary deprivation of property
why won’t damages suffice?
o       Legal system is sensitive to deprivation of property rights (not an issue of preliminary injunction)
o       14th Amendment protection extends to property interests even to people who aren’t outright owners
private actors can’t use the state to do their dirty work
o       in general, private people can do whatever they want, but when they use the state to get the job done, there will be limits
State involvement ” required to bring about constitutional scrutiny