Civil Procedure I - Outline 2

Civil Procedure I - Outline 2 - -1- 1CIVIL PROCEDURE...

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1 C IVIL P ROCEDURE O UTLINE Civil Procedure is the study of the operating rules of the institutions responsible in our legal system for the resolution of civil conflicts. These rules are specified in the Federal Rules of Civil Procedure (codified as Title 28 of the US Code). Most states have adopted similar rules. I. Civil Procedure as a Studied Enterprise A. Characteristics of Civil Procedure 1) Social value judgments behind civil procedure -- rules of procedure reflect social goals and value judgments of society. For example, a rule may limit recovery for negligence if the plaintiff is also negligent (contributory negligence), reflecting a societal judgment regarding personal responsibility. 2) Limitations on court involvement -- courts do not hear all controversies, only those that are considered justiciable . For example, Georgia High School Association v. Waddell , referee made a mistake in football game, appeals court held that this was not a judicial controversy-- no property interest in the game, no right to play football as protected by the Constitution, etc. Also, Cudahy Junior Chamber of Commerce v. Quirk , in a referendum campaign about putting fluoride in the city water, D made some claims that amounted to a bet between D and P. P sued to get D to pay up. Court would not hear case because this controversy was not justiciable-- a real and substantial dispute that affects legal rights. Gambling is an illegal activity and the courts will not enforce bets. Also, there was another alternative to resolving the fluoride dispute-- the voters would determine the outcome, so no need for the courts to get involved. 3) Alternatives to Courts -- mediation/arbitration-- only 6% of all cases go to trial (94% are settled). Mediation is a structured alternative method of dispute resolution. Mediator (neutral 3 rd party) and parties w/attorneys meet. There are introductory statements, then break up into 2 groups (P & D). P makes offer, which is then conveyed by mediator to D who can make a counteroffer. Mediation works because it is cheap and fast. Compromise is made easier because mediation is not binding and the proceedings are confidential (person might not want public knowledge of court proceeding if sensitive issue or would affect business). Mediation is good if the details of case are too complex for a jury. 4) Judges Responsibility -- judge can bring up issues that are not mentioned by either party in the interest of justice. For example, in Frummer v. Hilton Hotels International , trial court set aside verdict because the judge discovered that England’s new comparative negligence law should have been used and not the contributory negligence law. Even though neither party brought this up, appeals court held that judge could order a new trial when he discovers something and it is in the interest of justice to do so. © 2006 Stephen Hunt, Jr.
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Civil Procedure I - Outline 2 - -1- 1CIVIL PROCEDURE...

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