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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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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-

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- Spring '10
- Arkin
- Professor Arkin
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