Civ
Pro 2 Notes
Get
more from your procedure!
In Civil
Procedure I, everyone deals with jurisdiction, venue and
We
will do a unit on pleading, followed by a unit on joinder (how to join claims
and how to join parties). This is the
bulk of the course, or at least the most important part. Then we go to discovery, where there are some
newish rules.
Then we’ll do resolution without trial (like motions to dismiss and summary
judgment). We’ll look at trial (judge, jury,
burden of proof, and stuff like that). Then, hopefully, appeals.
He’s doubtful we’ll get there, but we’ll try.
The Five Themes of the
Course
1. Power – how is it
distributed? Rules allocate power
between different parties. The way we
draft and interpret the rules will change the way different people in a lawsuit
will have power in that dispute.
2. Interrelatedness – The Rules
are a system. Changing one part of the
system could have a dramatic effect on other parts. We tend to be, as rule-makers, stingy about
changes due to the potentially “ripple effects”.
3. Balancing of interests – The
Rules try to balance interests that often compete.
4. Costs associated with
choices
5. Efficiency vs. equity
Hopefully,
everything we do with touch these themes.
The Five Pedagogical
Objectives
1. Identify and apply “Black
Letter” procedural rules – we’ll learn what notice pleading is, what discovery
tools we have, what the requirements for summary judgment are and how they are
different than those for a motion to dismiss
2. Determine the doctrinal and
policy implications
3. Understand theoretical
implications
4. Develop a critical
perspective – there are different ways to do procedure.
5. Critically read cases for
procedural issues
Why
are the Federal Rules of Civil Procedure important? Most of the states’ rules have modeled their
rules after the Federal Rules. Remember
Congress
can intervene unilaterally by creating their own rules, separate from the Federal Rules of Civil Procedure. Fairman thinks this is bad. Other people think it’s
good.
The state of modern litigation
One
of the common criticisms is that we live in an overly litigious society. Yeazell challenges the idea that there is an
explosion of litigation. Public perceptions
cause Congress to make changes in federal practice. Tort reform and class action reform stem from
that. 98% of litigation is at the state
level. Very little is federal. But the state rules are still modeled on the Federal
Rules. We don’t even have an Ohio Rules
course! So only 3% of litigation
goes to trial. Most litigation
settles. Everything we talk about up to
pleading, joinder, and disposition prior to trial is pretty much where litigation
is. Very, very little gets to the trial
stage. There are more jury trials than
bench trials. Contracts plaintiffs and
torts defendants tend to win. So Fairman
and others think that tort reform is bad.
What
does medieval English royal power have to do with procedure?