Civil Procedure Class Notes 10/29/03


Time to turn the page on Civil Procedure and start the next section of the course!




We have skipped in the book from where we were to someplace different, and we will skip again.  There was some descriptive material about the nature of litigation that was optional.


The big picture of contemporary litigation


99% of lawsuits that go forward do so in state court.  So why the focus on federal procedure?  It’s because most states model their state rules on the federal rules.  For example, the Ohio rules are more or less the Federal Rules of Civil Procedure with a few exceptions.


Most litigation is civil as opposed to criminal, with a chunk of domestic and juvenile law thrown in.


The civil litigation is split about 50/50 between contracts and torts.  There’s a tiny bit of property litigation, too.


97% of civil cases end before trial (by dismissal or settlement).  Trials don’t end by themselves, they are brought to a halt by some kind of procedure.


Would abolishing federal diversity jurisdiction greatly impact our state court system?  It is argued that the answer is no because there are so few federal cases as opposed to state cases.


What if we streamline the jury process?  What if we shorten voir dire?  Would that help?  If so few cases end before trial, very few lawsuits will be affected because so few of them become trials.


Are drug criminal cases overloading dockets?  It is argued that this is not true because criminal cases only constitute about a quarter of all cases.


Everything we have done up to this point (personal jurisdiction, subject matter jurisdiction, venue, and choice of law) has tried to get us to a forum.  It’s all about choice of forum.  Now we’re going to take a step back.  Choosing a forum presupposes that we’ve already decided to litigate at all.


Two fundamental questions:


1.     What is the remedy?  Are you going to get something for your client?

2.     Where is the financing?  How is the litigation going to get paid for?


If there’s nothing “at the end of the rainbow” for yourself or your client, you won’t proceed.


The rest of this unit is “everything else”.  In Civil Procedure II[1], we go over the “everything else” in detail.


Incentives to litigate


Why do people sue?  What can they get when they do?  It’s all about money.


There are two types of remedies: specific and substitutionary.


Specific remedies compel someone to do something, for example, specific performance of a contract.  The other case of a specific remedy you’ll see these days is compelling an employer to reinstate someone’s employment.


Substitionary remedies are all about money.  The first case deals with the big money.


United States v. Hatahley


The plaintiffs are members of the Navajo tribe.  Their livestock was grazing on federal land, and they were sued to get the livestock off federal land, but the federal government took away all the horses and burros before the suit was decided and sold them to a glue factory.


The Navajo are entitled to sue under the Federal Tort Claims Act.  You can sue the federal government for anything that you could sue private citizens for under state law.


The Navajo win and are awarded money for:


1.     The loss of the horses and burros - $395 each

2.     The loss of use from the other livestock (that the horses and burros had been taking care of) – half of the total value of the loss of the herd

3.     Pain and suffering – $3500 per person


These damage measures are all wrong.  That’s not to say that the wrong done to the plaintiffs isn’t real; it’s that the court’s determination of value is inconsistent with the rules we use to assess damages.


The basic rule is quite familiar: the injured party needs to be put in the position it would have been in absent the wrong of the injurer.


If we apply this rule to the case at hand, the plaintiffs should get the market value of the horses and burros as well as the loss of use in the time before they could have reasonably replaced the horses and burros.[2]  This is a good standard.  But what does it mean in practice?


The open market rule


How did the plaintiffs value the horses and burros?  The plaintiffs argued that the animals were unique because they had been trained by the tribe to deal with their herd.  This was done through evidentiary testimony; the plaintiffs talked about how the animals were valued and how they might be valued in the course of trade with others.  This is not how we do things; we don’t base loss on the plaintiff’s individualized valuation, we base it on the market.  We use the open market rule.


Why do we have this rule?  Plaintiffs lie, exaggerate, or place unrealistic values on things.  If we didn’t have this rule, we would basically be letting plaintiffs choose their own damages.  This means that some plaintiffs might get undercompensated or overcompensated, but in the aggregate, we get “rough justice”.


But isn’t a horse that’s trained to herd sheep worth more than an untrained horse?  Maybe you would value that horse at the value of the untrained animal plus the cost of training it.


The mitigation principle


What about loss of use?  The trial court said that you get half of the diminution in value of the herd.  The appellate court says that damages can’t be arbitrary.  You must have some concrete way of proving your damages.  If you don’t, you’re not going to be able to recover even if you have a real loss.


But it’s not enough to just sit around and count your sheep as they die off.  You have to try to mitigate the loss by saving your animals.  The injured party has an obligation not to sit back and let their damages mount.  It is argued that the Navajo should have gone out and bought new horses to try to salvage the flock.


That’s the mitigation principle.


Individualized pain and suffering


What about pain and suffering?  The trial court gave a certain amount of money to each plaintiff.  The appellate court says that’s not the way to do it: the pain and suffering damages must be individualized.  But how are you going to prove individualized pain and suffering at trial?  This case is going to be retried as to damages.  What will the plaintiffs’ lawyer do?


If this measure of damages is individuals, we will have to present evidence—in the form of testimony or some sort of documents—as to every one of the individual plaintiffs.  Does this seem right?  Not really.


You can put individual plaintiffs on the stand for testimony as to how sad they are.  You can try to measure damages by the dollar value of the pain of one day of living without the horses and then multiply it by the number of days they suffered.  What else can the plaintiff’s attorney do?  How else can we put a value on pain and suffering?


We may use expert testimony from, for example, a psychiatrist, who can say how screwed up you are by virtue of losing your horse.  In typical tort cases, you talk about the extent of your injuries and the length of your rehabilitation, emphasizing the pain.


The court establishes a standard that plaintiffs must mitigate, but it doesn’t take into account the facts that underlie this case.  It is unlikely the tribe can afford to buy new horses.  They are probably not insured.  Yet the court still announces the rule and applies it.  There’s no question that the mitigate principle set out here is the right standard.  However, you’re not required to take steps that are impossible to take.  That would be the counter-argument to mitigation.  However, that argument will subject all of your assets to discovery in order to prove that you really couldn’t afford to mitigate.


The three important rules of compensatory damages that we learn from this case are:


1.     The open market value rule

2.     The mitigate principle

3.     Individualized measures of pain and suffering


One particular type of damages has troubled the Supreme Court twice: what do we do with punitive damages?  The two cases for tomorrow are the Supreme Court’s most recent pronouncements on how we deal with excessive punitive damages.


Back to Class Notes

[1] Does Civil Procedure II use the same book?

[2] In other words, the plaintiffs are held responsible for mitigating their loss.