CivProGuideOL(c)

CivProGuideOL(c) - I. CHOOSING A SYSTEM OF PROCEDURE A....

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CHOOSING A SYSTEM OF PROCEDURE A. Bands’ Refuse - Bands refuse sued the city b/c ordinance granted permit to pick up garbage in the city only to a party having a contract w/ town. i. LAW: A judge cannot be an advocate for one of the parties at trial. Here, the judge did not allow one of the parties to drop a complaint, held an ex parte communication with plaintiff, called witnesses without giving D time to depose, appointed amicus curiae which is allowed but not for judge’s cause ii. Witness- if not on your list cannot bring them to trial. iii. NOTE: Band’s refuse was eventually dimissed from the lawsuit b/c they had no standing. iv. Disqualification of a judge- judge may be disqualified if her impartiality might reasonably be questeioned. Include: Personl bias, personal knowledge of the facts, previous involvement as a lawyer, finincial interest, family relationship, 1. Note, Hostility to the parites or the eveidence generally is not a basis for disqualificiation. v. Procedure for disqualification- 1. Federal Court- party seeking to disqualify must file an affidavit of bias (sworn statement setting for the facts that are the basis for disqualification) Factual averments in such an affidavit are not open to challenge (except in criminal proceeding). If the facts as set forth are legally sufficient the judge must excuse herself. 2. State Court- some states are the same as above. Others however, are based on preremptory challenge (each party has an absolute right to disqualify one judge simply by filing an affidivit that he believes he cannot obtain a fair trial. A. Kothe v. Smith – Kothe sued 4 parties for malpractice. Only Dr. Smith did not settle prior to trial. Judge ordered a pre-trial conference told them to settle for $20K to $30K. Warned if settled for that amt at trial he would impose sanctions agst party causing delay. After first day of trial case settled for $20K. LAW : Cannot impose sanctions under rule 16 b/c the parties did not settle at pretrial conference…. Parties can decide to settle once trial begins, here maybe the D did not think P would be a strong witness turned out she was. Rule 16 does allow the judge to set time limits for the parties to settle, may request tha P be available by phone or otherwise present at a conference. Agent Orange Cases- A judge has the power to appoint a master to conduct settlement procedures. See Rule 53. B. Subject matter jurisdiction – Federal Courts can only hear cases in which there is a federal questions (civil rights, anti-trust) or where there is a diversity of citizenship. Personal jurisdiction- can a plaintiff compel a defendant to appear in the geographic locations where the P has filed suit. 1
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CivProGuideOL(c) - I. CHOOSING A SYSTEM OF PROCEDURE A....

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