OUTLINE___Woolley_Civ_Pro_Final

OUTLINE___Woolley_Civ_Pro_Final - Civil Procedure Final...

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Civil Procedure Final Outline Spring 2005 Pleading Practice – Claims and Defenses Summary of Procedure : Claim Counterclaim Complaint (P) Answer (D) Rule 12 pre-answer motion Rule 12 pre-reply motion Answer (D) Reply (P) 12(f) motion to strike (P) Reply to 12(f) motion to strike (D) 12(e) motion for more definite statement (if ordered by court, rare) Reply (if ordered by court, rare) Once all pleading is done, P can file 12(c) motion for judgment on the pleadings. I. Claims & Defenses. A. Definition. Claim = Set of facts that give rise to a right of relief. B. Conditional Imperatives If X does Y, then D will have a claim for Z, unless A. If/then = elements of claim. Unless = elements of affirmative defense. C. Determining their Validity. i. Claims Do the if/then clauses of the conditional imperative accurately state a condition of the substantive law? Do the actual facts fit the conditional imperative. If yes to the two questions above, P has claim unless D has valid affirmative defense. ii. Defenses Same questions for affirmative defense. P has to satisfy all elements of claim, D only has to assert one affirmative defense. iii. Failure Claims and affirmative defenses will fail if the respective clauses of conditional imperative do not accurately state the law or facts do not fit the pattern. II. Burdens. A. How to decide? P will have burden unless there is an “unless clause” set apart, generally. Sometimes Rule 8(c) is a guide for allocating burden. Sometimes precedent is controlling. B. Three Kinds (all usually on same party): i. Pleading Who has the responsibility for alleging a particular element in the pleadings? If plaintiff has responsibility he must do so in the complaint. If he doesn’t claim can be dismissed (D would file 12(b)(6) motion to dismiss). If D has responsibility he must do so in the answer. If he doesn’t, defense won’t be available later.
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May be able to amend pleadings later in proceedings. FRCP are generally relaxed in allowing this. ii. Production Who loses if no evidence is produced with respect to a particular element? Party who would lose is said to have the burden of producing evidence of element. Party meets requirement only if it has produced enough evidence to convince a reasonable jury to find for that party. Court can grant judgment as a matter of law if this burden is not met. iii. Persuasion (or Risk of Non-Persuasion) Who bears the risk of not persuading...they would lose here. Jury decides this one. Depends on relevant standard of proof. C. Standards of proof i. Preponderance Most civil cases = Is it more likely than not that X is true? If evidence is equally balanced, party with burden of persuasion will lose.
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