Civil Procedure Outline
Process of Litigation
I. Two Approaches to Civil Procedure
A. “Bottom Up” (our approach)
1) Examines how an individual lawsuit develops
B. “Top down” (“Constitutional approach”)
2) Examines Constitutional environment in which lawsuit exists
II. Procedural Approach (“bottom up”)
A. Procedural ?s as old as disputes/people.
B. Basic choice is between speed and quality (fairness/accuracy)
1) justice v. fairness (party w/ best presentation of the evidence may not deserve to win.)
C. Basic tension in Civil Procedure forces compromise decisions
1) should we weed out week cases before trial?
2) should plaintiffs have to make detailed pleadings?
3) How much discovery should be allowed?
D. General ?—Is lawsuit an official quest for truth or primarily a means of settling disputes?
E. Each rule represent a choice among procedural values
1) FRCP made self conscious decision toward flexibility
a. sought above all to break free of rigidity of earlier systems
III. Incentives to Litigate
A. How Much Litigation?
1) 98% of litigation occurs in state courts
2) In 2000, 91 million cases filed (1 per 2.75 people)
a. 3/5 traffic and ordinance violations
b. Remaining 36 mil, 39% Crim, 41% Civ., 20% Family/Juvenile
3) More people/economic act. = more lawsuits
a. Civil lit. rate about 20/person for 20 years
1. growing slower than economy/just outpace pop. Growth
2. Formerly K cases dominated
3. Split now 45/55 Tort/K
4) 3% of claims make it to trial
a. 70% jury/ 30 bench
1. Most K go to bench trial—average 18 months
a. P 62%, D 38% ($37,000 aver. recovery)
2. Most torts, jury—22 months
a. P 49%, D 51% ($31,000 aver. recovery.)
1) Remedies available at Court of Chancery = equittable
a. Injunctions most common
b. Others “constructive trust”, rescission, reformation of K
c. Some specific remedies are legal–replevin, ejectment, writ of mandamus (order official to perform act required by law,) writ of habeas corpus
d. Coke-Ellesmere dispute, 1616, James I decided equity defer to law
2) Remedial Hierarchy
a. to get specific remedy
1. legal remedy “inadequate”
2. or harm “irreperable”
b. reasons not grant specific remedy
1. interfere w/ other rights (e.g. not enjoining libelous pub.)
2. too great a hardship on D
3) Sigma Chemical Co. v. Harris (E.D. Mo. 1985) [pg 282]