Civil
Procedure Class Notes
Time
to turn the page on Civil Procedure and start the next section of the course!
Survey!
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
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.
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.