Civil
Procedure Class Notes
Yesterday,
we looked at the joinder rules.
Everything that’s encompassed in the survey is essentially what Civ Pro II is all about in detail. If we want to learn more about how procedure
works, we’ll want to take Civ Pro II. 70% of students do. There, you’ll see this stuff in more detail.
Some
professors start with the survey, some do it in the middle, some do it towards
the end.
Jurisdiction
is the most important part of this class!
The
gist of the Supreme Court’s ruling in
There’s
a procedure by which the Supreme Court gets advice from the Judicial
Conference. It’s the chief judges of all
the circuits and district courts. They
are advised in turn by a standing committee and various advisory committees. These committees include lawyers, judges, and
academics.
The
Supreme Court then proposes rules to Congress.
The Supreme Court issues the rule and Congress has a short window in
which to accept or reject the rule. If
they take no action, it becomes a federal rule.
So
if there’s a proposed new rule it goes from an advisory committee to the
judicial conference to the Supreme Court and to Congress, which will generally
ignore it.
For
example, Fairman will propose the abolition of Rule 9(b) to the
advisory committee, and he thinks he will be shot down (why?).
But
Congress can also make rules without going through the rules process. Currently, Congress is working on changing
the way class action lawsuits progress.
They’re trying to get heightened pleading for class action
lawsuits. The advisory committees are
trying to beat Congress to produce a better procedural decision.
Okay,
now we have joinder, and everybody’s in there. Now we will engage in discovery, which
includes 11 different rules!
Discovery
This
is simply the methods used by a party or potential party in a lawsuit to obtain
or preserve information. These are the
tools we have to find out stuff or keep stuff from being destroyed.
The
purposes of discovery are:
1. Preservation
of information that might not be available at trial. You record it through depositions, interrogatories,
and other stuff.
2. Winnowing down
the issues in controversy. We want to
start narrowing things down. Some of the
issues alleged in the pleadings might not be supportable at trial and you might
choose to drop a claim. Or, as a defendant,
you might find that you’re going to be liable and so you’ll settle.
3. Obtain
information that will lead to admissible evidence. But you can discover lots and lots of
stuff that will not be admissible.
Here’s
an example: we have a college athlete who is involved in an automobile
accident. He’ll be suing. I represent the defendant. Can I go and talk to his coach? Could I go and videotape the practices to see
how the player is performing? Can you
hire private detectives? You can do
whatever you want, more or less. This is
sort of informal discovery. Before we
look at the formal devices provided for by the rules, there are ways to find
out stuff informally. The thing about
private surveillance is that it’s expensive.
There
are certain things that a lawyer can’t ethically do. You can’t directly communicate with the
opposing party.
Once
a dispute is called to your attention, you must instruct your clients to retain
information. If there isn’t a dispute
brought to your attention, documents must be saved for a certain amount of time
and then destroyed as a matter of course.
Discovery
comes in the form of:
1. Requests for
production
2. Disclosures
3. Depositions
4. Interrogatories
5. Requests for
admissions
6. Mental or
physical exams
These
are the six main tools of discovery.
With
the exception of a deposition or a mental or physical exam, where the party
will clearly be involved in giving the testimony or giving the examination,
everything else is done by you, as the attorney. A lawyer writes the disclosure, another
lawyer writes the answer. A lawyer
writes an interrogatory and another lawyer writes the answer. This is a lot of what junior lawyers do.
It’s
not like you just give stuff to the client to answer, because you want to be
able to control the flow of information that goes from your side to the other.
All
of these tools are subject to other general discovery rules, like Rule 37: what do
you do if you don’t cooperate? This is a
sanction rule. For non-compliance with any
of the discovery rule, you can get sanctions, such as:
1. Facts are
deemed admitted.
2. Evidence is
prohibited.
3. Pleadings get
stricken or a dispositive ruling is made.
4. Contempt!
5. Attorney’s
fees and expenses
This
is a run-of-the-mill discovery dispute.
This is litigation out of a car accident. The defendant’s lawyer asked for some stuff
from AMC and MHC, two medical centers.
We’re
in federal district court. What is the federal
district court reviewing? What’s the
procedural posture here? This is
different than any other case we’re looked at.
This is a party-driven dispute, but this dispute has also been resolved.
This
is an appeal of a magistrate judge’s ruling to a district court! There is a hierarchy. There’s magistrate judges,
then district court judges, and Court of Appeals judges. Magistrate judges are not Article III judges
with lifetime appointments. They are
appointed to a term of years by the district courts. They help the district courts do their work. Pre-trial matters are submitted to the
magistrate judges. Also, sometimes the
whole trial can be tried by a magistrate judge if both parties consent. The reason to do this is that you’ll get a
faster trial.
When
the magistrate judge makes an order about discovery, they can be appealed for
abuse of discretion to the regular district court judge. If you go the trial route, that’s your bite
of the apple, and you have to proceed directly to the Court of Appeals.
Back to the facts! We have a car
accident between
What’s
a subpoena duces tecum? It means you’re asking people to show up and
bring all the relevant documents you’ve asked for. Typically, you see this in a deposition.
The
defendant wanted a whole bunch of crap!
They basically want anything that will prove that the medical centers
are Dr. Nick-type operations.
The
defendant’s theory of the case is that people get hurt, and then ambulance-chasing
lawyers get these clients. The lawyers
refer the clients to hospitals that will say they got way more hurt than they
really did, creating a litigation factory!
What
do the hospitals say? They say that the
patient list is privileged! They
also say that it would be overly burdensome to fork over all the documents! They also say it’s not relevant. What’s relevant to the present lawsuit? It’s the question of whether the plaintiff made
up the claims.