Académique Documents
Professionnel Documents
Culture Documents
I.
THEMES
1.
Adverserial system 2 parties duke it out in court. Party-run but still
according to rules of fairness and in pursuit of truth. Judge plays a passive role.
2.
Access to courts and liberal notice pleading
3.
Flexibility to change case with more info versus prejudice
4.
Providing notice/avoiding surprise
5.
Procedural posture- who is making the court decision, whether it is on
appeal, whether a ruling is dispositive, etc.
6.
Substantive law shapes what should be pled/to avoid 12b6, shapes what
discoverable under relevance, shapes summary judgment by creating framework
for genuine issue of material fact, shapes the burden of proof at trial/what
evidence is required.
II.
1.
Historical Background:
A. Rise of equity resort to a petition or bill directly to a king where
remedies could not be sought in the traditional system. Petition would go
to the Chancellor under the Chancery. Certain types of complaints were
then filed in this way. Equity developed in personum actions in that they
could order a person to act or to prohibit action.
B. Saw the development of two different systems law and equity.
Equity allowed greater discretion. The two systems competed and then
evolved into a dual system.
C. Federal Rules allowed for the merger of law and equity. Actions that
were originally under equity do not require a jury trial whereas actions
under law do. FRCP introduced claims, cross-claims, counter-claims, third
party practice, comprehensive discovery proceedings, and appeal options.
Working with the rules is a combination of statutory and case analysis.
D. Rules of Courts as Politics: What is valued within the procedural
system and how does this affect the actual procedures: shaped by culture,
history, present political and social circumstances.
E. Gender and Race: social and cultural norms shape access to courts.
System of privilege within the current system in which norms often dictate
a hierarchical structure providing variances in access to court difference
between federal courts and other courts such as housing or civil courts
illustrates a structure of privilege
3.
C.
1)
Lawsuit is bipolar lawsuit 1) Party structure is not rigidly
bilateral, may have multiple parties
is a contest between two
individuals or parties
2) Fact inquiry is not
2)
Litigation is retrospective, historical/adjudicative but predictive
controversy is about an identified and legislative.
set of completed events
3) Relief is not conceived as
compensation for past wrong, it is
3) Right and remedy are
forward looking often with a policyinterdependent scope of relief
making dimension. Remedy not
derived from the substantive
imposed but negotiated
violation
4) Subject matter is not purely
4)
Lawsuit is self-contained private but a grievance about the
operation of public policy.
impact confined to the parties
5) Scope of lawsuit is shaped by the
court and parties taking into account
5) Process is party-initiated
broader public interests. Judge is not
and party-controlled. Case is
organized and issues defined by passive and not limited to analysis and
statement of governing legal rules but
the parties, judge plays a minor
rile and will not intervene to help active in doing fact evaluation and
either side if it fails to recognize organizing and shaping litigation to
ensure viable outcome
a motion that can be filed, etc.
6) Decree does not terminate judicial
involvement, its administration may
require continued participation of the
6) Final ruling or settlement
court
terminates judicial involvement
REMEDIES
I.
GENERAL INFORMATION
1.
Generally, one of the first considerations of a lawsuit is who to sue which
brings up questions of what can be recovered from the Defendant. The type of
remedy sought will shape the case. Remedies are what the courts can give to the
Plaintiff. Issues of access to justice, which is the question of whether barriers to
litigation are too high or too low, can affect obtaining remedies.
2.
3 Categories of Judgments
C.
d.
1. Preliminary Relief
a. Have much higher standard compared to general relief
2. Winter v. National Resource Defense Council, Inc.
a. Majority opinion
i.
Likely irreparable harm to the plaintiff
ii. Plaintiff likely win on merit
iii. Public interest
b. Dissenting Opinion
i.
Possibility of harm would suffice
ii. Very likely prevail on merit
DISPUTE RESOLUTION
1. Arbitration
i. Result in an award that is essentially final and not subject to further
challenge
ii. Parties can choose the arbitrator
iii. Can design own procedure
i.
Can insist, that arbitrator will not refer to the ordinary rules of
contract but instead will adhere to the tradition that have
develop around this particular relationship
iv. Less expensive than adjudication
v. More private
vi. Arbitrator can decide matter more softly than a court
vii. When litigation, both parties are in adversarial relationship, arbitration
change the nature of the relationship
2. Mediation
i. Involves no statutes establishing structured mediation process
i.
No discovery
ii.
No enforcement, the mediator suggest what approach to follow
PROCESS OF LITIGATION
I. INTRODUCTION TO FEDERAL RULE OF PROCEDURE
1. Federal Rules of Civil Procedure
a. Different from statute, not directly enacted by a legislature
b. Congress empowered judge to write the rules
c. Rules, unlike federal statute, which can deal with any topic concerning
which the constitution allows Congress to legislate, the Rules may only
deal with practice and procedure
d. Can not be substantive
e. A series of committees appointed by the Chief Justice of the United States
considers proposed amendments to the rules
f. Committee-conference-supreme court
2. Bell v. Novick Transfer Co.
a. Defendant moved to dismiss the complaint
i.
Failed to state a claim against the defendant and each of them upon
which relief can be granted
ii. Alleged only that an accident occurred due to the negligence of the
defendants as a result of which the plaintiff were injured
iii. Fail to allege the specific act of negligence by the defendant of which
the plaintiff complain
b. Court ruled that under Rule 8 of Federal Rule of Civil Procedure, which
requires only a short and plain statement of the claim showing that the
pleader is entitled to relief
c. If defendant want more definite state, it can be acquire through a
interrogatories under Rule 33
3. Two school of thought regarding complaints
a. General: more cases being resolved justly, on factual merits, allow weak
case to survive longer
b. Specific: weed out the weaker cases, but eliminating a certain number of
claims that would be strong if they gained access to the discovery
CLASS NOTES 09/18/14
1. Federal Rule
a. Can not disrupt substantive law
b. Notice pleading
i.
Does not need to go into detail about the case, as long as it states the
claim
c. Plaintff want to state the complain as general as possible, defendant want
detail
i.
Defendant need to prepare for the allegation, thus need more
information
ii. It is story telling for the defendant
2. Bell v. Novick Transfer Co.
a. Defendant claimed that plaintiff''s allegation is vague
i.
Federal Court stated that maybe it is vague under Maryland statute,
but according to FRCP, the complaint is valid
b. Discovery is the phase to seek detail
II. PLEADING
1. The Complaint/Pleading
a. Rule 7(a): include complaint, the answer and some other initial paper in a
lawsuit
b. 7(b): different from motion, in that motion is request for a court order
c. Complaint
i.
First pleading
ii. Plaintiff explains his grievance and asks the court to grant some
remedy
iii. short and plain statement of the claim showing plaintiff is entitled to
relief and a demand for judgment for the relief sought
iv.
Answer
d.
e.
f.
g.
v.
d. Whoever has the burden of pleading in pleading will have the burden at
trial
e. How is the defendant going to know whether it is exhaustive if it is not
listed under 8(c )
f. Supreme Court changed the meaning of Rule 8(a)
III. RULE 11
1. Rule 11
a. Regulates the way lawyers and clients conduct themselves, establishing
standards for investigation of law and facts
b. Rule 11 allows court to enforce the standards in the context of litigation
rather than in an independent bar disciplinary proceeding that might occur
long after the lawsuit was over
2. Walker v. Norwest Corp.
a. Massey, attorney for the Walkers failed to plead complete diversity of
citizenship and plead facts tended to show there was not complete
diversity. He failed to allege citizenship of many of the defendant
b. Whether Rule 11 require the kind of complicated, in-depth and possibility
impossible inquiry that would have been necessary to determine the
defendants citizenship before filing a complaint based on diversity of
citizenship
c. Filing a diversity is a burden rested on the plaintiff, affirmed
3. Christian v. Mattel, Inc.
a. Hicks, filed a meritless claim against defendant Mattel on behalf of
Christian. Christian filed a copy-right complaints stating that the 1996
Cool Barbie door infringed the 1996 Claudene doll
b. Court held that reasonable investigation by Hicks would have revealed that
there was no factual foundation for the copy right claim, and his conduct
fell below the standards of attorneys practicing in central district of
California
c. Hicks argued that even if the court were justified in sanctioning him under
Rule 11 based on Christians complaint, the conclusion is impermissibly
because it considered other misconduct that can not be sanctioned under
Rule 11 such as discovery abuses.
CLASS NOTES 09/29/14
1. Rule 11
a. Anything that is written is governed by Rule 11
b. It require lawyer to have done both factual and legal investigation before
filing a claim
c. Make lawyer independently responsible to the court
d. Only apply to federal litigators, some states picked up Rule 11
2. Bridges v. Diesel Service, Inc.
a. Plaintiff did not file a charge with Equal Employment Opportunity
Commission until after the commencement of this action
b. Failure to perform legal research
c. Sanction is to deter conduct, it is not necessary because in this case, it was
a silly mistake and the court is certain it will not happen again
ii.
i.