Chapter 2 - A Desc. of the Litigation Process and Sources of Procedural Law

A DESCRIPTION OF THE PROCESS OF A CIVIL CASE - Most disputes never reach trial

The book emphasizes something easy to lose sight of in law school:

“Only a small number of disputes turn into lawsuits.”

Even where lawyers become involved, disputes frequently resolve through:

• informal negotiation;

• mediation;

• settlement.

And even lawsuits:

“seldom go to trial; most are settled as litigation proceeds.”

For the twelve months ending March 31, 2024:

“less than 1 percent of cases resolved in the federal district courts actually went to trial.”

Most ended earlier through:

• voluntary dismissal;

• court dismissal;

• settlement;

• summary judgment.

Exam/Practice Lesson

Civil Procedure is largely about everything that happens before trial.

The book puts it succinctly:

“The federal courts resolve many cases, but try very few of them.”

THE PLEADING PHASE - Complaint

Vocabulary — Complaint

The book explains:

“The plaintiff starts a lawsuit (usually acting through her lawyer) by filing a complaint against the defendant in court.”

A complaint:

“sets forth the basic facts that gave rise to the dispute.”

It then asserts the plaintiff's:

“legal claims (traditionally referred to as causes of action)—the legal wrongs the plaintiff asserts that the defendant committed that entitles the plaintiff to a remedy.”

Cause of Action

Book language:

“legal claims (traditionally referred to as causes of action)”

Possible claims from the book

• negligence;

• child support;

• breach of contract;

• violation of an antidiscrimination statute.

THE PLEADING PHASE - Relief / Remedy

At the end of the complaint:

“the plaintiff must state the relief she wants from the court.”

Possible relief includes:

• money damages;

• specific performance;

• divorce;

• order invalidating or upholding a will;

• accounting of business profits.

Specific Performance

Exact book definition:

“a court order for the defendant to perform obligations under a contract”

THE PLEADING PHASE - Multiple Claims — Rule 18(a)

This is an important joinder rule preview.

Book Rule

“Under the Federal Rules of Civil Procedure and similar state rules, a plaintiff may assert whatever claims she has against the defendant, so they may all be settled in a single litigation. Rule 18(a).”

The Rules even permit:

“contradictory claims.”

Janice/Bornstein Hypothetical

Bornstein:

1. allegedly builds Janice's garage too small; and

2. damages her shrubbery with a backhoe.

Claims

Garage → breach of contract

Shrubbery → negligence

Can both be asserted together?

Yes.

The book says:

“Under the Federal Rules, however, the two may still be pursued in a single lawsuit.”

Contradictory claim example

The book expressly gives:

Claim #1: “We never properly executed the contract so it should be declared invalid.”

and:

Claim #2: “We had a valid contract and I want damages for breach.”

Both may be asserted.

Multiple Defendants

Janice could also sue:

• Bornstein; and

• Maria, his backhoe driver,

as co-defendants on the negligence claim.

THE PLEADING PHASE - Service of Process

After filing:

“the plaintiff must serve process on the defendant”

which the book defines as:

“deliver to her a copy of the complaint and a court summons ordering the defendant to appear and defend the action.”

Summons

Book description:

“a court summons ordering the defendant to appear and defend the action.”

Why service matters

It is important:

“that a defendant receive notice that the action has been commenced.”

Possible methods identified:

• personal delivery;

• delivery to defendant's home;

• mail;

• service on authorized agent;

• corporate defendant → officer of corporation.

THE PLEADING PHASE - Default

Default

Exact Book Parenthetical Definition:

“fail to respond”

If D does not respond:

“a judgment for the plaintiff may be entered against her.”

THE PLEADING PHASE - Answer

Answer

“The defendant must respond to the suit by filing an answer.”

The answer must respond to:

“each allegation made in the complaint”

by:

1. admitting allegations that are true;

2. denying allegations D believes are untrue; or

3. stating D lacks sufficient information to admit or deny.

Effect of Admission

“Allegations that are admitted are assumed to be true for purposes of the case”

so trial preparation focuses primarily on allegations:

“that the defendant denies.”

THE PLEADING PHASE - Affirmative Defense

Exact Book Definition

“An affirmative defense asserts that, even if the claim alleged in the complaint is true, the defendant still should not be liable because of additional facts.”

This distinction is extremely important.

A denial says:

That allegation isn't true.

An affirmative defense says:

Even if it is true, another fact means I am not liable

Examples of Affirmative Defenses

Statute of Limitations

Book parenthetical definition:

“prescribing how long a party has to sue after a claim arises”

Example:

“Well, maybe I did deliver fewer computers than I was supposed to. But that was four years ago, and the statute of limitations for contract claims has passed, so you can’t recover for it now.”

Release

Book example:

“I admit that I agreed to provide twenty computers, but you later gave me a signed release from that provision of the contract.”

Plaintiff's Negligence

The book also gives a negligence example:

“Even if you can prove that I was partly at fault in causing the collision, you were more negligent, and under our tort law that bars you from recovering damages.

THE PLEADING PHASE - Amending the Pleadings

Amend

Exact contextual definition:

“rewrite them to change the allegations or defenses”

The Rules permit amendment:

“quite liberally”

although:

“the judge must usually grant leave to amend a pleading.”

Leave to Amend

Permission from the court to change the pleading.

The book explains that amendment may be permitted even later when:

• new information appears;

• a new legal theory develops.

Why?

Because trial should reflect:

“the parties’ educated understanding of their cases after substantial preparation of the case”

rather than trapping them in positions taken before fully investigating the facts and law.

Major connection to Chapter 13

This is deliberately the opposite of old common-law pleading, where parties could be rigidly confined to their initial position.

EARLY MOTION PRACTICE - Motion

Motion

The book describes a motion as:

“a motion asking the court to enter an order of some sort.”

In other words, a party is formally asking the court to do something.

EARLY MOTION PRACTICE - Rule 12(b) Preliminary Objections

The book says Rule 12(b) allows objections to be raised:

• in the answer; or

• through a pre-answer motion to dismiss.

Pre-Answer Motion

A motion made:

“before responding to the complaint.”

EARLY MOTION PRACTICE - Jurisdictional Objections

D may challenge:

• subject matter jurisdiction;

• personal jurisdiction.

If the court agrees:

“Because the court cannot hear a case if it lacks jurisdiction, it will dismiss the case.”

EARLY MOTION PRACTICE - Improper Service of Process

D can argue:

“that he was not served with the summons and complaint by a proper method.”

If the court agrees, it will likely:

“order that the papers be re-served rather than dismiss the case.”

Exam distinction

Not every successful Rule 12 objection necessarily means the lawsuit permanently disappears.

Defective service may simply be corrected.

EARLY MOTION PRACTICE - Rule 12(b)(6)

Exact Rule Language Quoted by Book

D may move to dismiss for:

“failure to state a claim upon which relief can be granted.”

Book Explanation

The motion asserts:

“that the conduct alleged in the complaint does not state a recognized legal claim for which the court can grant relief.”

Why dismiss?

“Because the court cannot grant a remedy for conduct that does not violate a recognized legal right.”

EARLY MOTION PRACTICE - Ortega v. Acme — 12(b)(6) Hypothetical

This is a major exam comparison, particularly because the book later reuses the characters for summary judgment.

Facts

Pitovsky is an Acme employee.

He drives into Ortega while:

“driving to the movies on the weekend”

and breaks her leg.

Ortega sues Acme.

Rule supplied by the book

An employer may be liable for employee negligence:

“on the job (‘in the scope of employment’).”

But not generally when the employee:

“is not at work.”

Result

Rule 12(b)(6) dismissal granted.

Why?

The complaint itself establishes that Pitovsky was not working.

Even if every factual allegation Ortega makes is true, Acme still is not liable under the substantive rule supplied in the hypothetical.

Exam Formula

12(b)(6): Assume P's allegations are true. Do those allegations establish a legally recognized basis for relief?

Here:

No → dismiss.

THE DISCOVERY PHASE - Discovery

Discovery Exact Book Definition

“Discovery is the process of obtaining evidence from witnesses and from other parties to the case through court-enforced procedures.”

The book says discovery:

“dominates the experience of litigators today.”

THE DISCOVERY PHASE - Distinctive American Discovery System

In many legal systems:

• judges order evidence production.

In most American courts:

• lawyers themselves demand relevant testimony/documents without first obtaining a court order.

The rationale for broad discovery:

“full understanding of the facts in a case before trial will facilitate efficient trials and lead to settlement of most cases.”

THE DISCOVERY PHASE - Scope of Discovery — Rule 26(b)(1)

Book Rule

“Under the Federal Rules parties are free to demand production of information and testimony that is relevant to any claim or defense that has been raised in the action.”

Generally:

“the lawyers run the discovery process”

by directly requesting and exchanging information.

THE DISCOVERY PHASE - Limits on Discovery

Even relevant evidence is not automatically unlimited.

The court may restrict discovery because:

• request is disproportionate to cost/value;

• request is unduly burdensome;

• production would violate an evidentiary privilege.

Example:

“attorney-client privilege”

THE DISCOVERY PHASE - ESI

ESI

The book uses:

“electronically store information, or ESI”

and later references:

“documents (including ESI).”

The significant practical problem is the enormous cost associated with:

• preservation;

• location;

• retrieval;

• review.

THE DISCOVERY PHASE - Protective Order

If a party objects to discovery:

“it may seek a protective order from the court.”

The court determines whether the material is discoverable and may issue:

• an order requiring production; or

• an order limiting discovery.

THE DISCOVERY PHASE - Automatic Disclosure — Rule 26

Federal Rules require:

“automatic disclosure of certain categories of information by the parties at the outset of the case.”

Why?

Because the materials:

“would be routinely sought in discovery anyway.”

Rule 26 requires the parties to meet and arrange an early exchange, including:

• documents;

• witnesses

that may support their claims and defenses.

THE DISCOVERY PHASE - Interrogatories — Rule 33

Exact Book Definition

Rule 33 authorizes:

“interrogatories—that is, questions—about the claims and defenses in the action to other parties.”

Important characteristics

• drafted by one party's lawyer;

• sent to opposing party's lawyer;

• answered under oath;

• usually drafted by responding lawyer;

• cannot be used to obtain information from non-party witnesses.

Exam trigger

Interrogatory to party? → Yes.

Interrogatory to nonparty witness? → No.

THE DISCOVERY PHASE - Requests for Production — Rule 34

Rule 34 authorizes requests for:

“production of documents (including ESI)”

that are:

“within the other party’s custody or control”

and relevant to the case.

Important Rule 34 requirements

Requests:

“must specify the documents sought by category”

The book expressly rejects:

“give me everything you’ve got”

as sufficient specificity.

What else can Rule 34 reach?

Requests may seek:

• documents;

• ESI;

• entry onto land;

• inspection of tangible things, such as a car involved in an accident.

Court approval?

No.

Rule 34 requests:

“are sent and responded to by the parties without any need for court approval.”

The responding party must:

• produce; or

• state objections.

If parties cannot resolve the dispute:

court involvement follows.

THE DISCOVERY PHASE - Subpoena — Rule 45

The book states:

“Similar discovery may be obtained from non-parties by subpoena under Rule 45.”

This connects directly to the interrogatory limitation.

THE DISCOVERY PHASE - Deposition — Rule 30

Exact Book Definition

“the deposition, the taking of testimony from a witness under oath.”

Unlike interrogatories, lawyers may depose:

“any witness with relevant information, whether a party to the case or not.”

Typical process:

1. witness appears;

2. court reporter administers oath;

3. attorney questions witness;

4. testimony recorded verbatim;

5. written transcript produced.

THE DISCOVERY PHASE - Why Depositions Are So Valuable

The book asks this as an express cold-call question.

Why?

Because they:

• put the witness “‘on the record’ in advance of trial”;

• allow follow-up questions;

• require spontaneous answers;

• prevent coaching before each answer;

• allow counsel to see the witness;

• let counsel evaluate demeanor and credibility.

The book stresses:

“Tactically, a witness’s demeanor and credibility may be as important as what the witness says.”

Main drawback

“they are expensive.”

THE DISCOVERY PHASE - Rule 35 Medical Examination

Rule 35 permits:

“a medical examination of a party whose physical or mental condition is at issue in the lawsuit.”

Unlike the major lawyer-driven discovery methods:

“medical exams require a court order because they are uniquely intrusive on a party’s privacy.”

Exam distinction

Rule 35 = court order required.

THE DISCOVERY PHASE - Requests for Admission

The parties may:

“send requests for admission to other parties, asking them to admit facts about the issues in the case or the authenticity of documents.”

Purpose:

“Such admissions can narrow the issues litigated at the trial, since issues agreed upon by the parties need not be proved.”

THE DISCOVERY PHASE - Discovery Is Not the Only Investigation

Counsel also may:

• interview client;

• interview employees;

• interview willing witnesses;

• gather documents;

• use Internet research;

• make Freedom of Information Act requests;

• hire private investigators;

• conduct legal research;

• draft memos/briefs;

• hire experts.

Important distinction

Discovery refers to specific court-enforced procedures.

Investigation is broader.

THE DISCOVERY PHASE - Zucker v. Goliath's — Discovery Hypothetical

Facts

Zucker eats seafood at Goliath's.

He develops food poisoning.

Chefs prepare incident reports suggesting food may have been improperly prepared.

Zucker wants:

1. deposition testimony of chef Riordan;

2. Goliath's incident reports.

Goliath's regards the reports as confidential.

Must Riordan testify?

Yes.

Must reports be produced?

Almost certainly yes.

Why?

“These discovery requests are clearly within the scope of discovery, since the testimony and documents are relevant to Zucker’s food poisoning claim.”

Critical lesson

Mere confidentiality does not equal privilege.

The book says:

“Nor does the fact that Goliath’s ordinarily keeps the reports confidential protect them from discovery.”

Exam trap

Do not automatically equate:

Confidential = privileged.

The book's recognized possible objections include things such as:

• attorney-client privilege;

• burdensome expense.

Neither applies to these facts.

JUDICIAL CONFERENCES

Historically, judges were relatively passive.

Modern federal judges:

“actively manage their cases through conferences with counsel for the parties.”

JUDICIAL CONFERENCES - Scheduling Conference

An early scheduling conference may set deadlines concerning:

• preliminary motions;

• automatic disclosure;

• document production;

• depositions;

• summary judgment motions;

• amendment of pleadings.

JUDICIAL CONFERENCES - Case Management Orders

After the scheduling conference:

“the judge will issue case management orders that set deadlines to structure the stages of pretrial litigation.”

JUDICIAL CONFERENCES - Final Pretrial Conference

Toward the end of discovery, the court may address:

• defining disputed issues;

• approving exhibits;

• evidentiary admissibility challenges;

• witnesses;

• settlement;

• unresolved motions;

• order of proof at trial.

JUDICIAL CONFERENCES - Final Pretrial Order

Afterward:

“the judge will issue a final pretrial order resolving issues concerning trial procedure and setting the stage for presentation of the case to the jury.”

MOTIONS FOR SUMMARY JUDGMENT

This distinction from Rule 12(b)(6) is essential.

A case may state a perfectly valid legal claim but still fail after discovery because:

P has no evidence to prove an essential fact.

That is where summary judgment comes in.

MOTIONS FOR SUMMARY JUDGMENT - Ortega v. Acme — Summary Judgment Version

This time Ortega properly alleges:

Pitovsky was working in the:

“scope of his employment”

when he hit her.

If true, Acme can be liable.

Therefore:

Acme cannot win Rule 12(b)(6), because the complaint states a valid claim.

But discovery produces:

• Pitovsky's time cards;

• supervisor affidavit;

showing Pitovsky was not working.

Acme therefore seeks summary judgment.

MOTIONS FOR SUMMARY JUDGMENT - Summary Judgment — Core Process

Acme challenges Ortega:

“to show that there is a genuine dispute concerning whether Pitovsky was acting in the scope of employment when he had the accident.”

Ortega must produce:

“some evidence casting doubt on or even contradicting Acme’s.”

Potential evidence:

• affidavit that truck contained Acme products;

• statement by Pitovsky that he was finishing deliveries.

If she produces such evidence:

“her testimony creates a dispute about the scope-of-employment issue, which has to be resolved by trial, and not by the judge on summary judgment without trial.”

Therefore:

Genuine factual dispute → summary judgment denied.

If Ortega Produces No Contrary Evidence

Then she cannot prove an essential fact.

The book says:

“Thus Acme ‘is entitled to judgment as a matter of law,’ and the court may grant summary judgment for Acme.”

Why “summary”?

“The judgment is ‘summary’ because it is issued by the judge without a trial.”

MOTIONS FOR SUMMARY JUDGMENT - 12(b)(6) vs. Summary Judgment

12(b)(6)	Summary Judgment
Problem with legal sufficiency	Problem with evidentiary sufficiency
Early stage	Usually after discovery
Even if allegations true, law gives no relief	Claim is legally valid, but party may lack proof
Ortega alleges employee going to movies	Ortega alleges employee working, but evidence says otherwise

Easy question to ask yourself

12(b)(6):
“If everything P alleges is true, could P legally win?”

Summary judgment:
“Is there actual evidence creating a genuine factual dispute requiring trial?”

ALTERNATIVE DISPUTE RESOLUTION - ADR

ADR

Alternative Dispute Resolution

The book identifies:

• negotiation;

• mediation;

• arbitration.

ALTERNATIVE DISPUTE RESOLUTION - Negotiation

The parties or lawyers negotiate a voluntary resolution.

If settlement occurs:

“the terms of the settlement are usually memorialized in a contract, and the case is voluntarily dismissed.”

Negotiation can happen:

• before filing;

• throughout pretrial proceedings;

• later in litigation.

ALTERNATIVE DISPUTE RESOLUTION - Mediation

A mediator:

“cannot impose an outcome, but instead try to help parties come to a mutually agreeable arrangement.”

For this reason:

“mediation is sometimes called ‘facilitated negotiation.’”

ALTERNATIVE DISPUTE RESOLUTION - Arbitration

Arbitrators:

“like judges, typically render a decision that binds the parties.”

Mediation vs. Arbitration

Mediation: facilitator; no imposed result.

Arbitration: decision-maker; typically binding result.

Important ADR characteristic

Mediation/arbitration:

“are handled outside of court and do not lead to a public decision with precedential value.”

Outcomes may also remain confidential.

TRIAL - Bench Trial

Exact Book Definition

If there is no jury:

“the case will be tried before a judge (called a bench trial), and the judge will decide both the factual and legal issues.”

Even where jury trial is available, parties may waive it for tactical reasons.

TRIAL - Voir Dire

Exact Book Definition/Description

“a process called voir dire, in which prospective jurors are questioned by the judge or counsel for the parties to assure that they are impartial.”

TRIAL - Basic Jury Trial Sequence

Know the order:

1. Voir dire

Select impartial jurors.

2. Opening statements

Parties explain:

“the proof they expect to submit.”

3. Plaintiff's case

P:

• calls witnesses;

• examines witnesses;

• submits exhibits.

4. Cross-examination

D's lawyer questions P's witnesses.

5. Defendant's case

D calls witnesses.

6. Plaintiff cross-examines D's witnesses.7. Rebuttal evidence/witnesses, if any.8. Closing statements

Parties summarize and argue why the evidence supports them.

9. Possible judgment as a matter of law.
10. Jury instructions.
11. Jury deliberations.
12. Verdict.

TRIAL - Judgment as a Matter of Law

The book says a party may move for judgment as a matter of law:

“arguing that the opponent’s evidence on some element of the claim or defense is too weak to allow a verdict in the opponent’s favor.”

TRIAL - Jury Instructions

The judge explains:

• legal rules;

• elements;

• how to consider evidence;

• who bears burden of proof;

• how to record verdict.

Important roles

Judge → instructs on law.

Jury → applies law to facts and reaches verdict.

POST-TRIAL MOTIONS

A verdict does not necessarily end the case.

POST-TRIAL MOTIONS - Motion for New Trial

Book Description

A losing party may request:

“a new trial—a do-over”

because:

• erroneous rulings;

• improper argument;

• other unfairness;

• verdict so clearly wrong it represents:

“a miscarriage of justice.”

POST-TRIAL MOTIONS - Renewed Judgment as a Matter of Law

The losing party may again argue:

“that the jury’s verdict for her opponent is not rationally supported by the evidence”

and ask the judge to:

“enter judgment for her instead.”

POST-TRIAL MOTIONS - Judgment

After post-trial motions:

“the judge will order entry of a judgment on the verdict.”

What officially ends the federal district court case?

“this ministerial act of entering a notation of final judgment on the court docket”

Important distinction

Verdict ≠ technically the final judgment.

The jury returns the verdict.

The court enters judgment.

APPEAL

A losing party may appeal when convinced:

“that some legal error at or before trial prejudiced his right to present his case fully in the trial court.”

The book notes that appeals generally must be filed quickly:

“often thirty days after entry of judgment.”

APPEAL - Stay

Exact Book Definition

The appeal may:

“stay—postpone—the right to collect the judgment”

or a party may ask the court to stay enforcement.

APPEAL - Limited Role of Appeals

The book expressly asks:

Is the case retried in the appellate court?

“No.”

Core appellate rule

“Appellate courts do not retry cases or take further evidence.”

Their role:

“is to review claims that an error of law was made in processing the case at the trial level.”

They generally ensure:

• fair process;

• correct legal rules.

And:

“Except in unusual circumstances, they do not second-guess the factual findings of the judge or the jury.”

Legal Question vs. Factual Question

Proper appellate issue:

Was jury given the wrong negligence instruction?

Proper appellate issue:

Did trial judge improperly exclude evidence?

Usually not:

Did D actually drive negligently?

That type of factual issue belongs to:

“the trier of fact”

APPEAL - Trier of Fact

The chapter uses this term to refer to the person/body responsible for deciding factual disputes:

• jury; or

• judge in a bench trial.

APPEAL - Appellant

Exact Book Description

The appellant submits a brief identifying:

“the issues on appeal—the mistakes she claims were made in the trial court”

and explains why they justify reversal.

Appellant = party taking the appeal.

APPEAL - Appellee

Exact Book Parenthetical Definition

“the party who won below, and opposes the appeal”

The appellee argues the lower court should be affirmed.

APPEAL - Record of the Proceedings Below / Record Appendix

The appellate court relies upon:

“a ‘record of the proceedings below’ prepared by the parties.”

It may include:

• pleadings;

• motions;

• exhibits;

• briefs;

• transcripts.

Critical rule

Appeal is based on the record.

Witnesses do not come in and redo testimony.

APPEAL - Oral Argument

The book explains that appellate lawyers frequently argue before a panel, but:

“need not if they believe it unnecessary in particular cases.”

APPEAL - Appellate Opinion

After argument:

• judges confer;

• one judge drafts opinion;

• draft circulates;

• opinion issued.

An appellate opinion:

• resolves the appeal; and

• explains governing law.

APPEAL - Remand

The chapter's visual explanation says:

“If the court concludes that an error was made in the trial court, it may remand the case to that court to reconsider or retry.”

Remand

Book context: send the matter back to the trial court for reconsideration or retrial.

APPEAL - Dissenting Opinion

If a judge disagrees with the majority:

“they will file a dissenting opinion setting forth their view as to how the case should be resolved.”

EFFECT OF A JUDGMENT ON LATER LITIGATION

There are two doctrines you need to separate:

Claim Preclusion
vs.
Issue Preclusion

EFFECT OF A JUDGMENT ON LATER LITIGATION - Claim Preclusion / Res Judicata

Exact Book Rule

“The doctrine of claim preclusion, also called res judicata, bars a party who has sued a defendant on a claim from suing that defendant again on the same claim, if the first case was decided after a full opportunity to reach the merits.”

Synonym

Claim preclusion = res judicata

EFFECT OF A JUDGMENT ON LATER LITIGATION - Merkle v. Rico Hypothetical #1

Merkle sues Rico for personal injuries from June 2023 car accident.

Later she wants to sue Rico separately for property damage to her car from the same accident.

Can she?

No.

Why?

“both the personal injuries and property damage arose out of the same occurrence.”

Claim preclusion bars the second suit.

The book calls this:

“a second ‘bite at the apple.’”

EFFECT OF A JUDGMENT ON LATER LITIGATION - Merkle v. Rico Hypothetical #2

What if Merkle later sues Rico over an entirely different 2022 accident?

Yes.

Why?

“they arose out of different occurrences at different times.”

The earlier lawsuit does not bar the separate accident claim.

EFFECT OF A JUDGMENT ON LATER LITIGATION - Issue Preclusion / Collateral Estoppel

Exact Book Rule

“This principle usually precludes parties from relitigating issues that were litigated, decided, and necessary to the judgment in a prior action between the parties.”

Synonym

Issue preclusion = collateral estoppel

EFFECT OF A JUDGMENT ON LATER LITIGATION - Jane/Stamski Hypothetical

Year 1:

Jane wants to sublet.

Stamski sues, arguing lease prohibits subletting.

Court decides:

Lease allows subletting.

Year 2:

Jane wants to sublet again.

Stamski sues again, making the same lease-interpretation argument.

Claim preclusion?

No.

Why?

The second lawsuit concerns:

“new facts that had not taken place when Stamski sued Jane the first time.”

Issue preclusion?

Probably yes.

Why?

The interpretation of the lease:

• is the same issue;

• was litigated;

• was decided;

• was necessary in the first case.

Policy

“Why should a court allow them to relitigate the issue if it was fairly decided in the prior action?”

Doing so would:

“waste the parties’ and the court’s resources.”

CLAIM PRECLUSION VS. ISSUE PRECLUSION

Claim Preclusion	Issue Preclusion
Prevents relitigation of a claim	Prevents relitigation of an issue
Same claim/occurrence is central	Later case can involve a new claim
Merkle same car accident	Jane's new summer sublet
Also called res judicata	Also called collateral estoppel

SOURCES OF CIVIL PROCEDURE REGULATION

This is the other major doctrinal portion of Chapter 2.

The key is a hierarchy.

Federal hierarchy

United States Constitution
↓
Federal Statutes
↓
Federal Rules of Civil Procedure
↓
Local Rules
↓
Individual Judge's Standing Orders

Every lower level may supplement but cannot contradict the levels above it.

The book expressly states:

“a regulation at each level may supplement but may not contradict sources of regulation above it in the hierarchy.”

This is a high-priority exam rule.

SOURCES OF CIVIL PROCEDURE REGULATION - United States Constitution

The Constitution establishes:

“the basic framework of our federal government.”

Examples relevant to Civ Pro:

Article III

Basic provisions concerning:

• structure;

• jurisdiction

of federal courts.

Article I, §8, cl.18

Necessary and Proper Clause authorizes Congress to enact laws necessary and proper to implement federal judicial power.

Fifth and Fourteenth Amendments

Guarantee:

“due process before a court can deprive them of life, liberty, or property.”

Seventh Amendment

Guarantees:

“the right to jury trial in some civil cases in federal courts.”

SOURCES OF CIVIL PROCEDURE REGULATION - Federal Statutes

The Necessary and Proper Clause permits Congress to enact statutes governing federal procedure.

Many are in:

“Title 28 of the United States Code.”

Examples provided:

• 28 U.S.C. § 133 — federal district judges

• §§ 1251–1257 — Supreme Court jurisdiction

• §§ 1291–1296 — Courts of Appeals jurisdiction

• §§ 1331–1369 — federal district court jurisdiction

• §§ 1441–1454 — removal

• §§ 1861–1875 — federal jury selection.

SOURCES OF CIVIL PROCEDURE REGULATION - Statute

The chapter's footnote explains:

“The term ‘statute’ usually refers to an enactment of the highest level legislative body in a government.”

Therefore:

• Congress → federal statutes.

• State legislature → state statutes.

SOURCES OF CIVIL PROCEDURE REGULATION - Supremacy of Constitution

Congressional statutes cannot contradict the Constitution because the Constitution is:

“the ‘supreme Law of the Land.’”

Example

Because Seventh Amendment guarantees jury trials in certain cases:

Congress cannot enact a statute eliminating jury trial in those cases.

SOURCES OF CIVIL PROCEDURE REGULATION - Rules Enabling Act

Congress delegated rulemaking authority to the Supreme Court under:

“28 U.S.C. §§ 2071–2077 (the ‘Rules Enabling Act’).”

It authorizes the Supreme Court:

“to adopt general rules for practice in the federal district courts and the courts of appeals.”

SOURCES OF CIVIL PROCEDURE REGULATION - Federal Rulemaking Process

1. Congress

Delegates authority through Rules Enabling Act.

↓

2. Supreme Court

Has delegated drafting work to:

↓

3. Judicial Conference of the United States

↓

4. Advisory Committee on Civil Rules

Composed of:

• lawyers;

• judges;

• law professors.

It performs:

“the actual work of drafting and recommending rule changes.”

↓

5. Judicial Conference

Recommendations move upward.

↓

6. Supreme Court

Reviews/approves.

↓

7. Congress

Rules submitted:

“no later than May 1 of each year.”

↓

8. Effective Date

Unless Congress:

• modifies; or

• rejects

them:

“they become effective on December 1.”

SOURCES OF CIVIL PROCEDURE REGULATION - Federal Rules of Civil Procedure

The Federal Rules govern:

“many aspects of day-to-day practice in the district courts that are not governed by statute or the Constitution.”

Because adopted under congressional delegation:

“the Rules have the force of law.”

They cover the full litigation process:

• filing;

• pleading;

• pre-answer motions;

• conferences;

• discovery;

• trial;

• post-trial motions;

• judgments.

Interesting organizational point

The Rules roughly track litigation chronology:

Early Rules → pleadings/service

Middle Rules → discovery

Later Rules → trial/post-trial

SOURCES OF CIVIL PROCEDURE REGULATION - Local Rules — Rule 83

Federal Rule 83 permits:

“the judges of each federal district to adopt local rules to govern the details of practice in that district.”

But:

“Such local rules must be consistent with the Federal Rules of Civil Procedure, federal statutes, and constitutional provisions.”

Possible topics:

• filing deadlines;

• sealed/private material;

• discovery form;

• scheduling conferences;

• assignment of cases;

• continuances;

• electronic filing.

SOURCES OF CIVIL PROCEDURE REGULATION - Continuance

Book parenthetical definition:

“postponements”

SOURCES OF CIVIL PROCEDURE REGULATION - Standing Orders

Individual judges may issue:

“‘standing orders’ specifying procedures they will use in their individual courtrooms.”

Standing orders cannot contradict:

• Constitution;

• statutes;

• Federal Rules;

• local rules.

But they may:

“fill in further interstices.”

Examples:

• how prospective jurors are questioned;

• when counsel may move to strike juror.

SOURCES OF CIVIL PROCEDURE REGULATION - Alhambra Hypothetical — Hierarchy of Procedural Law

This is a very strong exam hypothetical.

Federal Rule 48(a)

Jury begins with:

“at least 6 and no more than 12 members”

and:

“each juror must participate in the verdict unless excused [for good cause].”

Alhambra Local Rule

Requires:

• eight jurors;

• two treated as alternates;

• alternates dismissed before deliberations if not otherwise needed.

Is requiring eight jurors valid?

Yes.

Why?

Federal Rule permits 6–12.

Eight falls within the federal range.

Is mandatory dismissal of the two alternates valid?

No.

Why?

Federal Rule says all jurors participate unless excused for cause.

The local rule contradicts the higher Federal Rule.

Therefore:

“This aspect of the local rule is invalid, since it contradicts the governing Federal Rule.”

Exam Rule

A lower-level procedural rule may fill gaps or add detail.

It may not contradict a higher authority.

SOURCES OF CIVIL PROCEDURE REGULATION - State Procedural Hierarchy

The book explains:

“A similar hierarchy of authorities applies in state courts.”

Sources may include:

1. U.S. Constitution requirements applicable to states;

2. state constitution;

3. state statutes;

4. state court rules;

5. rules of particular state courts.

Again:

“lower-level rules and regulations must be consistent with ‘higher-level’ state statutes and constitutional provisions.”

SOURCES OF CIVIL PROCEDURE REGULATION - Federal Rules Do NOT Govern State Courts

This is worth memorizing verbatim:

“the Federal Rules, which you will deal with consistently in Civil Procedure, do not govern state court procedure. They are federal rules applicable in the federal courts only.”

However:

“Many states . . . have modeled their civil procedure rules on the Federal Rules.”

So similar-looking state rules are still state procedural rules, not the FRCP themselves.

THE SUBSTANCE OF PROCEDURE

The surface idea is:

Substantive law tells us who should win.
Procedure tells us how the dispute gets decided.

But the book emphasizes that this division is incomplete because:

“many procedures have an important effect on who wins and who loses.”

The book tells students to remain aware of:

“the ‘substance of procedure’—that is, how procedural concepts affect whether plaintiffs or defendants will prevail.”

This is a major policy concept.

Procedure may appear neutral while materially advantaging one side.

THE SUBSTANCE OF PROCEDURE - Example 1 — Personal Jurisdiction

Narrow jurisdiction

P may be forced to sue far away.

That increases:

• cost;

• inconvenience;

• likelihood P does not sue.

Advantage → defendant

Broad jurisdiction

P can sue closer to home.

But:

• out-of-state D may face greater burden.

Advantage → plaintiff

THE SUBSTANCE OF PROCEDURE - Example 2 — Pleading

More specificity required

P has greater difficulty surviving dismissal, especially because much information may be held by D before discovery.

Potentially favors → defendants

Less specificity required

Weak cases can proceed farther and impose litigation costs.

Potentially burdens → defendants

THE SUBSTANCE OF PROCEDURE - Example 3 — Discovery

Restricted discovery

P may fail to uncover proof needed to survive:

• summary judgment;

• trial.

Broad discovery

D may bear enormous costs and settle:

“cases that have little merit just to avoid discovery expenses.”

Exam/Policy Question

Whenever your professor gives you a procedural rule, consider:

Who benefits from this rule?
Who bears its cost?

That is what the authors mean by the substance of procedure.

CIVIL PROCEDURE AND SOCIAL JUSTICE

The book describes civil procedure as:

“lawyer-centric”

because most civil procedures:

“have been created by and for lawyers.”

The system assumes:

“each side has a lawyer who understands those procedures and can ensure that disputes are resolved on their merits.”

But that assumption often does not hold

CIVIL PROCEDURE AND SOCIAL JUSTICE - Pro Se Litigant

Book parenthetical definition:

“people who represent themselves”

The chapter reports that many lower- and middle-income Americans receive no meaningful legal assistance with problems including:

• child custody;

• debt collection;

• eviction;

• foreclosure.

The result is large numbers of pro se litigants

CIVIL PROCEDURE AND SOCIAL JUSTICE - Default — Social Justice Context

The book notes that many people:

“never even show up in the courts (they ‘default’)”

because they:

• lack counsel; and

• do not know how to represent themselves.

Core policy lesson

Procedural complexity does not affect all litigants equally.

THE LITIGATION PROCESS — MASTER FLOW

For exams, I would visualize the whole chapter as:

Dispute

↓

Negotiation/Mediation may resolve it

↓

Complaint filed

↓

Service of process

↓

Answer / affirmative defenses

↓

Possible amendment

↓

Early Rule 12 motions

↓

Discovery / investigation

↓

Judicial conferences + case management

↓

Summary judgment

↓

Settlement/ADR may occur throughout

↓

Trial

↓

Verdict

↓

Post-trial motions

↓

Final judgment entered

↓

Possible appeal

↓

Judgment may affect future litigation through claim/issue preclusion

That is the Civil Procedure forest the chapter wants you to see before studying individual trees.

Complaint vs. Answer

Complaint → P's allegations and claims.

Answer → D responds and may assert defenses.

Denial vs. Affirmative Defense

Denial:
That allegation is false.

Affirmative defense:
Even if it is true, additional facts defeat liability.