Civ Pro 2 Notes 8/18/04


Get more from your procedure!


In Civil Procedure I, everyone deals with jurisdiction, venue and Erie.  We did a little bit on the decision to litigate: remedies and financing.  We did a survey with stuff like pleadings, complaints, motions, joinder, discovery, and trial.  This is a survey course!  But it doesn’t teach you how to do stuff.  It does give you a working knowledge of the steps in the litigation process.


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 Erie and the Rules Enabling Act.  The Supreme Court has delegated its responsibility to write the Federal Rules.  There is the Judicial Conference, which has two parts: the Standing Committee and the Advisory Committee.  Congress has the opportunity to accept or reject Rule changes.  For example, should you be able to file things by fax?  Lawyers say yes!  It’s now in Rule 5(b)(2)(D).  You can deliver copies of things by fax as long as you meet the standards of the local jurisdiction.


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?


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