Civ Pro: Intro P1

Ch1 + 2

Fundamental Q for every law suit

Which court should the case be filed?

Subject-matter jurisdiction

authority to hear the TYPE of issue

Personal jurisdiction

authority to force defendant to appear in court

Venue statutes

define which courts can hear a particular suit

Pleadings

documents that start a case and state positions, submitted by P

Joinder

sayd who can be party to a case and the claims allowed in 1 action

Discovery

exchanging info between parties to develop claims and defense

Article III of the Constitution

US Supreme Court has ultimate power and allows federal court to authorize existence and power of state courts, federal and state governments can coexist

Original jurisdiction

state trial court (dif names in def states)

Answer

D answer to P’s pleading

Intermediate appellate court

every state has at least one, everyone can appeal to this court

Highest appellate court

often called ‘Supreme’, discretionary appeal (have to petition to have your appeal heard or get) and be granted ceritori

Federal courts

follow same rules as state, but with less of each court in each region and on 1 Supreme

Us Supreme court

highest court in the US, can hear cases from state supreme courts if covers federal law (and gets approved)

Federal Question Jurisdiction

federal courts can (but not required) to hear matters concerning federal law

Diversity Jurisdiction

when parties are citizens of different states, federal can hear the case (bc state judges may be biased to their own citizens bv they are elected)

concurrent juridiction

state courts can hear federal cases

exclusive federal jurisdiction

only federal can hear certain cases (28 USC1337: maritime) (28 USC 1338: patent/copyright)

forum shopping

choosing to bring case to state vs. federal

• convenience

• familiarity

• Jury pools (fed and state draw from def regions)

• speed (fed typically quicker)

• case assigned to 1 judge (federal, state sometimes has dif judges for dif phases)

• out of state litigants (may prefer federal so not biased against them)

• attorney control (more control in state)

• expertise (judge may have more experience w one issue over another)

• other - dif rules of evidence and discovery…

Litigation process (federal, but most states have similar)

1. pleading

2. discovery

3. pretrial

4. trial

5. post trial

6. appeal

Pleading

1. P files COMPLAINT

2. D ANSWERS or MOVES TO DISMISS

Can be amend later

Complaint

basic facts, legal claims/CAUSES OF ACTION, relief seeking

Answer

D’s response responding to each allegation

• can affirm, deny, or say not enough info

  • affirmed=not litigated (assumed true)

• can assert AFFIRMATIVE DEFENSES (not but not liable for other reasons)

  • Stat of Limit expired

  • Release (admit fault, but stating how was released from the provision)

Rule 12b

can file a motion for the court to enter an order when there are objects that may prevent case from going forward

• can be stated in ANSWER or in PRE-ANSWER MOTION TO DISMISS

Rule 12b6

can file a motion to dismiss for failure to state a legal claim

Discovery

= investigating facts, get info from other party, file and argue motions

• can demand evidence without a court order

• court can restrict and regulate (if order is too broad, to burdensome, breach evidentiary privleges)

Rule 26b1

PRESUMPTIVELY DISCOVERABLE = parties are free to demand discovery that’s relevant to any claim raised in action

Protective Orders

can get them from court if party objects to handing over discovery

Rule 26

requires parties to meet at start to exchange required documents

• AUTOMATIC DISCOVERY

Rule 33

can send INTERROGATORIES (Q’s for other party)

• answer Q’s under oath with practiced answers

• no non-party witnesses

Rule 34

allows requests for the production of documents, must be specific

• can be land/tangible evidence

• no approval needed by court to request

• respond with evidence or objection

Rule 45

can get evidence from non-party with subpoena

Rule 30

DEPOSITION (get testimony under oath and can’t see Q’s before)

Rule 35

request for MEDICAL EXAMINATION OF PARTY (physical/mental)

• court ordered required

Request for admission

can be requested to admit facts to narrow the issues in dispute

Pretrial

hold pretrial conferences, can submit motion for summary judgement or evidentiary issues

• judges take active role (unlike in the past) to set deadlines

Scheduling Conference

to set deadlines (for all pleading amendments and discovery activities)

Final Pre-trial Conference

to plan the trial with judge

• judge files PRETRIAL ORDER after to prepare presentation of case

MOTION FOR SUMMARY JUDGEMENT

file to dismiss for lack of facts, didn’t establish essential facts

TRIAL

1. Opening statement

2. P’s evidence (D counter)

3. D’s evidence (P counter)

4. closing statement

5. jury instructions and deliberation

right to trial by jury doesn’t apply to many civil cases or can opt out of jury tril to have BENCH TRIAL

VOIR DIRE

picking of jury

RULES OF EVIDENCE

rules for attorneys to follow when questioning

JUDGEMENT AS A MATTER OF LAW

in closing, if think other party’s evidence was too weak, can ask judge for this

Post-trial

• can file post trial motions like for a NEW TRIAL (to try and stall entering judgement)

• once motions are settled, judgement is entered for the winner 9ending the trial)

Appeal

can only appeal based on errors of LAW not fact

• must be done in a timely manner (typically 30 days)

• filing for appeal can STAY right to collect judgement

• 3-7 judges review written record

• can hear oral arguments if want

results in judicial opinions

Record appendix

written record of trial (that appellate court reviews on appeal)

Appellant

files appeal, submits brief stating issues and why

Appellee

submits why the original trial was correct

Non-trial ways to resolve dispute

1. Negotiation

2. Mediation

3. Arbitration

Negotiation

most common, lawyers outside of court try to agree on settlement

• can continue to the pretrial

Mediation

outside court, mediator is only a guide (can’t make binding decisions)

Arbitration

outside court, arbitrator can render binding decisions

Claim preclusion/ Res Judica

after judgement is made over an issue, can’t sue over that same claim again

(dif suit over the same occurrence)

Issue Preclusion/Collateral Espottel

can’t relitigate issues that were decided in a prior action between the same parties

(same exact issue comes up as 1 of multiple in a new case, can’t relitigate that one issue)

Regulations the govern procedure in federal courts

1. US Constitution

2. Federal Statutes (from Congress)

3. Federal Rules of Procedure (adopted by US Supreme) (have force of law) (order reflects stages of procedure)

4. Local Rules

5. ‘standing orders’ (by judge in their individual courtroom)

each ruling must be consistent with the authorities above it

28 USC 2071-2077

Rules Enabling Act = authorized Supreme Court to adopt general rules in district and appellate ct

• Supreme delegates that to the Judicial Conference of US

  • Advisory Committee on Civil Rules drafts changes that Supreme and Congress can adopt or reject (submit by May 1, effective by Dec 1)

Federal Rule 83

district judges can adopt local rules to govern details of practice (ex timing of requests)

28 USC ….

• 133 = appoint and number of fed judges

• 1251-1257 = jurisdiction of US Supreme

• 1291-1296 = jurisdiction of federal appeals

• 1331-1369 = jurisdiction of federal district (trial)

• 1441-1454 = removal from state to federal

• 1861-1875 = jury selection of federal

Constitution Art 1 Sect 8 Clause 18

Congress can make laws that are ‘necessary and proper’

5th and 14th amendments

DUE PROCESS

7th amendment

right to trial by jury (in some civil)

Fed Rule 1

Scope and Purpose: these rules govern all civil actions and proceedings in fed district courts (except those in Rule 81)

Fed Rule 2

One Form of Action: only civil actions

Fed Rule 3

Commencing an Action: commence action by filing complaint

Fed rule 7

Pleadings Allowed: Motions and other

1. complaint

2. answer to complaint

3. answer to counterclaim designated as such

4. answer to crossclaim

5. 3rd party complaint

6. answer to 3rd party complaint

7. if ordered by court, reply to answer

• request for court order must be made by motion:

  • in writing, with particularity for the grounds, relief sought