Andra's Outline - Meuller

Andra's Outline - Meuller - Andra Zeppelin- Civil Procedure...

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Andra Zeppelin- Civil Procedure Outline- Mueller- Fall 2005 1. CHOOSING A SYSTEM OF PROCEDURE- ROLE OF THE JUDGE Should a judge keep quite in the process of the trial and in settlement negotiations ? Fuller The Moral forces of a judgment or decision will be to a max when the following conditions are satisfied: i. Judge does not act on own initiative but for the parties. ii. Judge has no direct or indirect interest in the outcome of the case. iii. Judge confines his decision to the controversy before him and attempts no regulation of the parties beyond the controversy. iv. v. Judge decides solely on evidence and arguments presented to him. vi. Each disputant is given ample time to present case Frankel The ignorance and unpreparedness of judges are intended axioms of the system. The facts are only to be found and asserted by the contestants. The judge is not to investigate or have someone else investigate for him. The judge’s interruptions are just that: interruptions- occasional, unexpected, sporadic, unprogrammed and unduly dramatic because they are dissonant and out of character. Zeidler - American judge is quite- he asks for evidence, tells lawyers what info he wants, but it is the lawyer that moves the process along and not the judge who keeps neutral. J UDGE S INTERVENTION WITH THE CASE A judge may not assume the role of an advocate in a trial over which he presides. The judge must be seem impartial both for fairness and also b/c judge is not in position to adequately take over the case. By intervening, judges undermine the logic and ultimate justice of our system. Band’s Refuse Removal v. Borough of Fair Lawn- D (City) awarded garbage collection contract to Capassos. P (Band) challenged the legality of the contract and the constitutionality of the ordinance by the City. Inappropriate and extraordinary participation from the Judge—called own witnesses (27), changed direction of the suit (from Band v. City to City v. Capassos for bidding fraud), directed and took over P’s case (threatening lawyer to go along)—which prejudiced Capassos case. 1. Result: Reversed and remanded. Judge got what he wanted—now could try the actual case he thought should be up. 2. Fuller applied to this judge: he acted on his own initiative, didn’t confine himself to just the case (felt the case held issue of local significance that he could make right), and did not jusge based on evidence alone 3. He misused his power to alter the case he saw fit. . J UDGE S INTERVENTION IN P RE -T RIAL S ETTLEMENT Court may not sanction a party for refusing to settle. Judges can only encourage settlement, cannot coerce parties to settle. Kothe v. Smith
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This note was uploaded on 02/12/2008 for the course LAW 5303 taught by Professor Krakoff during the Fall '05 term at Colorado.

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Andra's Outline - Meuller - Andra Zeppelin- Civil Procedure...

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