Civil Procedure Class Notes 8/18/03


Today, getting to Gordon, which will spill over until tomorrow.


Yeazell sketches out what he thinks procedure is in the intro to the casebook.


Civil Procedure: What is it?


We’re talking civil, not criminal.

We’re talking adversarial, a bipolar dispute between two individuals, and usually involving money.  In our case, they’re using the court system.  There are other ways to solve disputes, though (c.f. ADR).


Civil Procedure focuses on rules.


We’ll use the Federal Rules as our model.  But states have their own set of rules too.  So if you end up practicing in a state, you might have to relearn some specifics.


The rules are enacted by either legislatures or courts.  Fairman says that courts have more experience.


Civil Procedure deals with procedure, not substance.


So some people find it abstract at first.  It’s something the average person has little contact with before they become a lawyer.


Civil Procedure is the study of the principles surrounding the resolution of civil disputes by the courts and the various tools available to a lawyer who must bring or defend a lawsuit.


FRCP Rule 1


The rules are meant to ensure just, speedy, and inexpensive lawsuits.  “Fair, fast, and cheap.”  We’ll later look back and ask, “How did they do?”


The Five Themes


1.     Judicial Power – Who has it?  What courts have power to adjudicate disputes (i.e. jurisdiction)?

2.     Dispute Parameters – How do we take big cases and winnow them down into what’s actually going to get tried, if they get tried?  The tools of setting these parameters are all procedural.

3.     Obtaining finality – The more that happens to a lawsuit in different courts, the harder it is to undo.

4.     Costs – Every lawsuit has its costs, monetary or non-monetary.

5.     Balance between equity and efficiency – cheap & quick and fair are at odds.  We can have more of one or more of the other…we need to make tradeoffs.


The Five Pedagogical Objectives


1.     Identify and apply “Black Letter” procedural rules – some rules is rules (c.f. FRCP Rule 8).  Know them.

2.     Determine the doctrinal and policy implications of the rules.

3.     Understand the theoretical implications of the rules.  We want to find truth, if there is a truth.  We let them sue now, and find truth later.

4.     Develop a critical perspective: how do we limit frivolous lawsuits?

5.     Skill: be able to read cases critically for procedural issues.  In this course, we’re concerned with procedure and not substance.


This is only half of the story.  There’s another course, Civ Pro II, that most people tend to take their second year.  If you’re going to do litigation, you should take Civ Pro II.  It’s much more rule-based.


Gordon v. Steele


The Style of the Case: all the text at the top of the case.  What does it mean?  It’s the first plaintiff “v.” the first defendant.  The person who sued goes first.


Then you’ve got some numbers that tell you it’s in the 376th volume of the Federal Supplement.  That tells us it’s a Federal District Court case…all of them are reported in “F. Supp.”…whereas Appeals cases appear in the regular old Federal Reporter.


W.D. Pa. 1974: The Western District of Pennsylvania.  Aha!


Pay attention to the date: The judge says certain things that would be offensive today…I was thinking the judge said what he did about marriage because the plaintiff was a Mormon…perhaps it was because she was a woman.


A variety of court systems: we have Federal Courts, including U.S. District Courts, which are trial courts.  They appeal to the U.S. Courts of Appeals (we’re in the Sixth Circuit).  They get appealed up to the U.S. Supreme Court.


In the state courts, you have your trial courts…like the funky courts we have here in Ohio.  They get “appealed up” to State Courts of Appeals, and then to State Supreme Courts.  Sometimes those can in turn get reviewed by the U.S. Supreme Court if Constitutional issues were involved.


This is all a modern view.  It wasn’t always this neat.


Facts: The defendants are all from Pennsylvania, and Gordon is too, originally.  Gordon is a student going to school in Idaho.  She hurt her wrist, and it was fractured, but the docs didn’t find it.  She’s suing the doctors and hospital for malpractice.


Where these people are from is important.  The doctors and hospital are in Pennsylvania, and that’s where the lawsuit is filed.


Where is Gordon from?  That’s the issue.  Gordon says Idaho.  Steele says Pennsylvania.


Why does that matter?  It matters in terms of diversity jurisdiction.  Federal courts can’t hear every case.  They do allow cases between people from different states.


An issue for later: issue preclusion.  If the issue has already been decided in court, you can’t decide it again.  So if in Federal Court, they find that Gordon is a resident of Idaho, that stands if she sues in State Court.


More on Gordon tomorrow!


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