Advanced Civil Procedure Outline-1[1]

Advanced Civil Procedure Outline-1[1] - Advanced Civil...

Info iconThis preview shows pages 1–2. Sign up to view the full content.

View Full Document Right Arrow Icon
Advanced Civil Procedure Burch Spring 2009 Outline I. Introduction to Complex Litigation: a. Judges can be the dominant figure in aggregate litigation. i. Parties become less adversarial. Often repeat players. Worried plaintiffs are shortchanged. b. In re Swiss Bank Holocaust Litigation (S.D.N.Y): i. Once identification obliterated, Holocaust victims tried to get money back from Swiss banks. Banks refused. S.D.N.Y. litigating rights of Holocaust victims. ii. Creates German Initiative: Private organization that compensated Holocaust. c. Methods for Aggregation: i. Contractual Aggregation: 1. Model Rule 1.8(g): Aggregate Settlement: If you represent one or more people: a. Need advance waiver, because future interests might conflict. b. Must disclose amount of individual settlement to each client. ii. ALI: Principles of Aggregate Litigation: 1. Not binding. Wants to do away with 1.8(g): 2. Trying to include a waiver in retainer agreement that waives right to see what everyone else wants. If 75% agree, then the settlement is binding on everyone. E.g., Vioxx 3. Might have attorney client conflict: Attorney is a joint venture: a. Attorney has interest to settle early, may conflict with clients. iii. Bankruptcy is like a 23(b)(1) limited fund class action. Trying to figure out who gets a piece of pie. d. Personal Jurisdiction Review: i. In personam : Most common; Entitled to full faith and credit. Person is Jurisdictional predicate. ii. In rem : Rem is a property interest. Purporting to adjudicate property interest against the world. iii. Quasi In rem : Adjudicating person’s property rights. Land is the jurisdictional predicate. 1. Instance of you would like to proceed in personam, but for whatever reason you can’t. Arises out of a particular piece of property. Trying to collect damages. Can still be sued in state, even though there is no contacts with the forum. Minimum contacts would not be sufficient. Would be sufficient if property caused injury. Schaeffer v. Hartner . iv. Settlement is like a property interest. Can use that interest to enjoin someone from proceeding. II. Preclusion: a. Claim Preclusion/ Res Judicata i. If court of competent jurisdiction issues final judgment on merits, will preclude future litigation on the same claim against that defendant. Most states adopt a transactional test for defining a claim. ii. Plaintiff gets one bite at the apple, or chance to get to the merits: 1. Can get claim precluded through judgment, settlement, or discovery sanctions. iii. Claim preclusion requires identify of parties, or privity, not just mutuality. 1. Even switching sides is not sufficient for claim preclusion. b. Issue Preclusion/ Collateral Estoppel i. An issue is precluded from being re-litigated in future litigation if: 1. Original case ended with a final judgment on the merits; 2. Same issue presented in Case 2 was litigated and determined in Case 1; 3. Issue must have been essential to the judgment in Case 1; 4. As a matter of due process, issue preclusion can only be asserted
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Image of page 2
This is the end of the preview. Sign up to access the rest of the document.

This note was uploaded on 05/25/2011 for the course LAW Complex Ci taught by Professor Burch during the Spring '11 term at FSU.

Page1 / 21

Advanced Civil Procedure Outline-1[1] - Advanced Civil...

This preview shows document pages 1 - 2. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online