Civil Procedure
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This assumes both parties have
the ability to represent
themselves equally, so laws will
be made accordingly.
The accuracy principle will guide
the correct legal outcome,
which is different from the
moral or ethical question that
may be in contrast
Many cases are cases where
force occurred, so it seems that
no more force would occur, so
is it defined properly?
The legal system may be a
reflection upon society but it
seems as though it is it’s own
type of creature, and assuming
it will modify behavior for
society rather than itself may be
reaching a bit.
Does the court really modify
behavior or just punish, can
punishment in itself create
positive behavior?
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Procedural vs. Substantive
Dealing with procedures of the law and also with the civil
Portion.
What are the procedures in the court room, what are the
Policies in the court room and policies that govern
How the courts operate?
CivPro will deal with how 2 interested parties sue one
Another. Can be p2p, gov’t2p, etc. not criminal cases,
In which gov’t acts to uphold common good.
Adversarial vs. Inquisitorial system
We have adversarial. It promotes people going against
One another to solve their differences in court room.
Benefits
Truer decision reached (interested parties)
Interested parties should fork the bill/time
Final decision needed to solve cases
With interested parties and inquisitorial system
Is better with dealing evidence and nondefinitive
Answers.
Can do battle in a court room, thus primal
Basal level emotions are satisfied.
Participation and Accuracy principles (Solum)
Participation principle is one that guides the system
To ensure both parties get an equal chance in the
Adversarial system
Accuracy principle guides the courts to make the legally
Correct outcome occur
“…both for the architects of procedural design and
Reform and for judges who apply general procedural
Rules to particular cases”
Conflict model resolution and Behavior modification tool
Social model resolution – public gives power to the court
So that the court can settle greviances w/out force.
Behavior Modification model – states that the parties
That have behavior problems and lose the case,
Serve as an example to all of society that the behavior
Was incorrect.
 Civil Procedure
Different jurisdictions have
different possible outcomes
(monetarily) or procedures
guiding what the defendant or
plaintiff can or can’t do. i.e.
suing for 500,000 vs. 75,000
This process could take a very
long time if the parties do not
agree upon what actually
happened so the there may be
pleading after pleading. This is
called Variances, and
Amendments.
If parties bring about baseless
claims they may get sanctioned.
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SELECTING THE PROPER COURT 1
Jurisdiction
Jurisdiction as in the Aikin case can greatly determine
How the person ends up getting sued.
Are both parties from the same area?
Was one person working for another when act occurred?
How can the person be tried federally?
One from one state the other from a different
If the person spends meaningful time there
Are they part of the state?
Commencing the Action 2
Service of Process – plaintiff must notify the commencement
Of the action.
The process consists of a Summons, which directs
The defendant where and when under penalty of default
(losing the case).
Service done in three ways
Personal service – physically given to defendant
Substituted serv- given to a 3rd party (mail, agent)
Published – in newspaper
Pleading and Parties 3
Pleadings – a written statement of what happened and why
The Plaintiff is suing the defendant.
First one is called the complaint
4 things required
1. Legal and Fact issues are separated, and parties must
more or less agree upon the facts and issues
accordingly.
2. Lay out the specific contentions to which one the
Plaintiffs will argue; if negligent what was negligent,
if hurt what exactly hurt.
3. A general notice of the case/contentions may be
more appropriate instead. Form 11 of the Federal
Rules of Civil Procedure
 Civil Procedure
Plaintiff may specifically argue
for motion to dismuss because
of failure to state a claim or
cause of action/dismiss for a
demurrer.
Although the plaintiff can add
new facts in the reply
concerning what happened in
the case, the tendency is to
deny new evidence/facts at this
point in court. Also, the
defendant may make a
counterclaim against the
defendant. Defendant may also
implead forcing the party who
committed the crime (Beasley
vs. Cecil) to be held liable.
Modern custom is for the court
to order both parties to list all
the peoples and documents
involved in the
beginning/during discovery to
lessen court costs. However
enforcement is not always
followed-through.
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THE RESPONSE 4
Motion to Dismiss – after complaint, it’s the response by the
Plaintiff to call into question whether there is a
claim and whether certain facts are untrue. This
may be granted if 1. If the injury is a nonserious
one and the law doesn’t require one to look at
the injury. 2. No allegation made that connects
the facts to the defendant. 3. The facts in the
case are too broad or confused.
No motion to dismiss is made(or if it is denied) defendant must
file an answer, agreeing or disagreeing with the
factual basis for the case. In the answer Cecil
may state contentions of affirmative defenses,
which are defenses in which it is pointed out that
the plaintiff made his/her own mistake.
After the answer, the plaintiff may reply, in kind, with a reply.
Obtaining information prior to Trial 5
The tool for finding out what happened or some specifics in the
Case is called the Discovery.
Deposition is the written account of a witness or
Party member as to what happened in the case.
The deponent may be cross-examined.
Written interrogatories – answerd by part with
counsel aid
Production of documents – relating to case
Requests for admission – remove uncontested
issues
Physical examination – defendant can choice
another doctor to examine plaintiff
 Civil Procedure
These pleading stages are very
difficult stage to resolve cases.
A motion to dismiss must be
heard, even if the defendant
creates a fabricated but logically
possible story.
Most cases do not make it past
the discovery phases. Also, if a
jury in particular means to be
selected 3 years could be the
time of the trial from the start.
No hearsay evidence or leading
type questions, this will be ruled
upon ultimately by the judge.
Judge will ask jury to not listen
to evidence if that is the case.
How do they do that?
If introducing evidence not
given before trial, then must be
brought upon and proven by
witness of evidence.
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SUMMARY JUDGMENT 6
A motion for a summary judgment allows one side to add
pertinent facts to the case that will change the
nature of the case itself, show the issue to be
spurious. The judge does not decide if one side is
lying or not so this is a nonissue.
SETTING THE CASE FOR TRIAL 7
If dismissal, summary judgment or settlement are not reached
during discovery phase, a trial is next. A note of
issue which places the lawsuit on a trial calendar
which sets the case up for the next time
available, could take years.
THE JURY AND ITS SELECTION 8
a JURY IS a right given by the 7th amendment. A judge however
typically is involved with cases of a civil matter that called for
specific actions to be taken or stopped.
Equitable remedies are handled by juries.
If juries are demanded the lists that they can be chosen from are
tax rolls, street directories, or ordered to the courthouse.
Judges and lawyers question them on biases
A peremptory challengeI is made by one side to excuse a juror
that he or she probably does not want, no reason needs to be
given.
Challenge for cause can be shown if juror shows some outright
bias towards one side (or has relations to one side)
THE TRIAL 9
All sworn in
Opening statement
Plaintiff’s turn
Direct exam
Cross-exam
Re-direct
Re-cross
Plaintiff rests
Directed verdit –a judgment as a matter of law. No prima facie
case has been proven. If denied then defendant’s turn
Defendant
Direct exam, etc.
Call for trial judge to rule under evidence leaning to one side, if
not jury takes over.
 Civil Procedure
The burden of persuasion can
fall on either the plaintiff or
defendant depending on the
case and the facts.
If the jury has a conflicting
verdict with a qualifying
question with the judge, the
judge will overrule the verdict
with the nature of the answer.
This motions can be about
evidence, clerical mmistakes,
etc. These are exceptions to the
rulings and not the
standard/common occurances.
Plaintiff must get money from
defendant (execution)
Sheriff can seize property of
losing party through writ of
execution.
Action is not stopped a fee or
jail time may occur
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SUBMITTING THE CASE TO THE JURY 10
Civil cases use preponderance of persuasion
This requires the lawyers to prove each fact by a
preponderance of evidence. If The preponderance is not met
then the jury should act against the side which has the burden of
persuasion.
3 types of verdicts.
General verdict – unanimous for one side, apply the law
General verdict with interrogatories – w/? attached
Special Verdict – judge applies answers that the
Jury was asked, jury does no legal analysis.
If there is a split decision then the jury is nominated as HUNG.
Post-TRIAL MOTIONS 11
Motion for a
Judgment notwithstanding the verdit J NOV, or renewed motion
for judgment.
Same as a motion for a directed verdict.
THE JUDGMENT AND ITS ENFORCEMENT 12
Judgment determines the finality of the lawsuit, if there is no
appeal
Judgment rendered when:
Defendant does not appear
Granting a demurrer
Motion to dismiss
Motion of summary judgment
Settlement agreements
Jury’s verdict
Findings of act
Conclusions of law of trial judge (nonjury)
Judgments can be in the form of:
Money, equitable
Injunction to stop action/decree
Prevailing party gets the costs of the court
 Civil Procedure
A lower court can reject the
certiorari automatically.
If and when we get to this ask
Pathak to clarify this distinction
Also need clarification for this
term.
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Appeal 13
Can contain 2 levels of the appellate court and which is
determine by the nature of the case.
To be sought by the USA supreme court a petition for a writ of
certiorari must be filled out and granted.
The record that the appellate court sees is:
The transcript of the trial
Orders ruling regarding appeal
Written briefs to appellate court
Oral arguments from interested parties (via lawyers etc.)
Affirm, reversal or modifying judgment can or may occur.
Remanding the case means getting a new trial to the lower courts
once again.
Reviewability vs. appealability
Appealability lies only in judgments and from certain
Orders made in the course of litigation when immediate
Review is deemed so important that a delay in the
Action during appeal can be tolerated.
Reviewability – a trial judge ruling out evidence is
Reviewable. So when appeal is made the appellate court
Can decide of the ruling was correct (hearsay evidence)
Interlocutory orders
Interim orders that may involve different levels of the
trials micromanaging certain parts of the judgment with regard
to motions. Some motions are not appelable and may have no
burden on the case, seen in the federal system. Each court
handles this accordingly.
Also, the lack of the interlocutory appeals means the trial judge
has more power since he or she can not be overturned by
appellate or federal court.
Interlocutory orders may simply not be granted, but if granted
the motion the same judgment may have occurred.
THE CONCLUSIVENESS OF JUDGMENTS 14
AFTER THE TIME FOR appeals is over the final judgment is
renderd, this is called res judicata. Very rarely is anthying
overturned at this point, but possible.
 Civil Procedure
Must serve motion on
adversary…? Why would you
serve motion on yourself?
Cross motions can be made
Motions can be costly time
consuming and if not done
correctly can show judicator the
lack of expertise and anger
clients w/extra cost.
Can a combination of reliefs be
granted for one plaintiff?
1/3 is general lawyers fee
How much does litigation eat up
of relief, specifically financial
relief? Pain and suffering cannot
be abolished or else the cost of
litigation falling on the plaintiff
will make the cost of litigation
to high to take the case.
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MOTION PRACTICE
Litigants typically make motion in the form of written documents
to the court
Exceptions: court hearing record verbatim, during trial
Requirements of Motions:
Against adversary
Brief/memo of law in support of motion (pg limit)
Proposed order – not all
Affadavits – not all
Ephemeral
REMEDIES
The need for remedies grows out substantive law, but procedure
is the means as to which one gets the remedies.
The linkage between remedies and procedure grows out of
common law and equity.
Common law requires judges only
Equity was set up to be complementary of com law
2 consequences of distinction
1. The right to a jury, in federal court, is determined
whether the matter is legal or equitable, and also on
the remedy sought to rectify the problem. Injunctive
relief was the purpose of equity
2. Injunctive relief is in place where com law will not be
adequate to met the demands of exceptional
relief/specific relief
Types of Relief
1. Declarative – the court decides/declares what rights
the party has or what the party is able to do (say a
contract limitation), not common, but invaluable.
2. Specific – directs one party towards a specific
conduct. Stop doing something, give something back,
etc.
3. Compensatory - pay a some to the plaintiff
 Civil Procedure
This was granted by the Rules
Enabling Act of 1934
The actual flexibility of the
procedures comes into question
and one wonders how all cases
could fall into one
comprehensive doctrine.
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PROCEDURAL RULES IN THE FEDERAL AND STATE COURTS
PROCEDURE RULES ARE MADE BY GOVERNED BY
THE FEDERAL RULES OF CIVIL PROCEDURE
Advisory committee, approved by supreme court
By and large comes up with the list of federal
Proposed rules
Federal Rules supposedly exhibit Transsubstantivity, in that they
can be applied across and context, case and time.
Federal Procedures do not typically bind themselves on state
issues and vice versa. However it is not common for a state
procedure to be completely opposite or of a federal procedure.
 Civil Procedure
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