Civil Procedure I - Mueller Fall 2004 - B+

Civil Procedure I - Mueller Fall 2004 - B+ - Civil...

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Civil Procedure Outline First Semester Chapter 1: Choosing a System of Procedure Federal o Trial Court = district court Usually just one judge hears a case 650 federal district court judges o Appellate court Usually three judges 180 federal court of appeals judges o Supreme court A person has a 1 in 100 chance of getting his case heard here 9 Supreme Court judges State o District court – 350 district or county court judges in CO o Court of appeals – 16 court of appeals judges in CO o Supreme Court – 7 supreme court judges in CO Must petition for them to hear a case (1/10 chance) Judicial Discretion o Trial judges, arguably, do the most work of all the judges and there are very few judges at the top (pyramid) While they do not like being reversed, they realize that most of their cases will not make it to the appellate court, so they have a great deal of discretion o How do appellate courts look at the cases coming from the trial courts? They cannot retry the cases, so they must use judicial discretion o Our system favors little judicial involvement Band’s Refuse (judge took too active a role in the case and was not impartial, but received a slap on the wrist and remand to try the case he actually wanted in the first place) Rule 16: Pretrial Conferences, Scheduling, and Management Kothe v. Smith (judge sanctioned one party for settling the case one day into trial for the amount he had suggested before trial) o Sanctions were vacated by appellate court o Rule 16 provides for these, but we don’t want judges to jump in and take control of settlements and trials o Role of judges in an adversarial system : We expect the judge to be innocent and ignorant (Frankel); thus when a judge intervenes in a case Compared to continental system: Judge is much more involved; he can gather information himself More flexibility Can take place episodically Two major differences between adversarial system and continental systems of procedure o U.S. is a common law system; continental is a civil law system (based more on statutory law) Virtue of the common law system – it can evolve incrementally with more experience than reason (however, our system is more fifty-fifty now) Virtue of the civil law system – there is more legislative involvement o U.S. has a right to a jury trial in most civil cases; continental system has a judge that sees almost all civil cases, not a jury 1
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Chapter 2: The Rewards and Costs of Litigation P REJUDGMENT S EIZURE o One procedural device permitting interim relief before the case goes to trial o A means of ensuring that the property will be available for execution in case the plaintiff prevails o Due process requirements : Initially, the procedures for getting a prejudgment seizure were very casual However, problems arose and the courts worked to meet the due process requirements 14 th Amendment Due Process Clause: “No state shall . . . deprive any person of
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Civil Procedure I - Mueller Fall 2004 - B+ - Civil...

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