CivProGuideOL(b) - Downloaded From OutlineDepot.comCivil Procedure Professor Arkin CHOOSING A SYSTEM OF PROCEDURE NOTE SHE DOESNT EXPECT THE HX OF ERIE

Downloaded From OutlineDepot.com Civil Procedure - Professor Arkin CHOOSING A SYSTEM OF PROCEDURE NOTE : SHE DOESN ’ T EXPECT THE HX OF ERIE , ETC , SHE JUST WANTS US TO KNOW IT FOR PRECEDENT REASONS • IDENTIFYING THE RELEVANT CURRENT PRECEDENT IS THE MOST IMPORTANT TASK • IF THERE IS AMBIGUITY , IT WILL LIKELY BE IN THE FACTS THEMSELVES , NOT IN THE WAY THE LAW INTERACTS W / THE FACTS S O W HAT IS C IV P RO ? System of procedural law that creates the rules for enforcing rights in civil suits … procedural law system provides mechanism for applying substantive law to concrete disputes → helps w/ uniformity Features of our adversarial system 1.) Judge’s role is neutral so people more likely to accept result a. Exception: Band’s Refuse Removal v Borough of Fair Lawn – judge found to have overstepped his bounds and to have committed prejudicial error when admitted new evidence, introduced 27 out of 32 witnesses, etc b. Judge’s power to bring witnesses, admit evidence is limited c. Judges allowed to shape issues, manage case, but must remain impartial 2.) Party-driven litigation: both parties expected to prepare cases w/ minimal judicial interference a. Kothe v Smith – settlement is the choice of the parties → judge in this case found to have been unfair in imposing settlement on unwilling party i. Rule 16 designed to encourage settlements, but not force them ii. Rule 68 → party being sued can offer to settle up to 10 days before start of trial L AWSUIT O VERVIEW 1.) The dispute – is there a remedy at law? What kind of relief does Π want? Is it worth the cost of litigation? 2.) If Π wants to go to trial, 2 decisions: a. Where ? What place? Local ct (homefield advantage) or away (costs more, but sometimes worth it)? i. Need to think about where ∆ can be forced to defend too b. Which Court? i. Federal ct – limited jurisdiction 1. federal questions 2. diversity ii. State ct – general jurisdiction 3.) If federal ct → a. Dispute become lawsuit when Π files summons and complaint w/ clerk of court – waiver of service form sent to ∆ b. ∆ answers → or i. can ignore, but bad idea → default judgment likely entered 1

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Downloaded From OutlineDepot.com Civil Procedure - Professor Arkin ii. pretrial answer saying no jurisdiction or failure to state claim (R 12b) c. conference per Rule 26 – discovery schedules, then Rule 16 conference (builds on scheduling from R 26 conference… encourages settlements) d. motion for SJ (R 56) e. Pre-trial conference and order (puts in queue for trial date) f. Trial i. Opening stmts - Π , then ∆ ii. Π s case in chief iii. ∆ moves for judgment as matter of law or directed verdict iv. ∆ s case in chief v. another chance for directed verdict motions on both sides vi. closing arguments vii. deliberations viii. verdict/judgment 1. if don’t like verdict, motion for judgment nov 2. or motion for new trial ix. final judgment g. appeal → after final appeal, get money by executing on judgment and lawsuit is res judicata CHOOSING THE FORUM: ISSUES OF PERSONAL JURISDICTION AND SUBJECT-