Civil Procedure Outline

The FRCP are meant to give a just, speedy, and inexpensive determination of every action.
Goals of the civil justice system:
Justice
Time Efficiency
Cost Efficiency

Pleading
Plaintiff at outset of trial has a lot of choices and power:
Choice to start a lawsuit.
Choice of claims to file.
Choice of parties to sue.
Choice of forum to bring the lawsuit.
The plaintiff is the master of his own claim. And can exert a lot of influence in this way.
The defendant has some choices about the lawsuit as well:
Can move to dismiss the case under FRCP 12, challenge for lack of jurisdiction, venue, improper service, no legal
claim, failure to join necessary parties.
Can motion to have case removed to federal court or to a different venue.
Can add claims to the case: counter-claim against plaintiff, or cross-claim against other defendants
Can add parties to the action, under Rule 14, by impleading a third-party defendant.

Personal Jurisdiction
P.j. must be established at outset of case. Validity of judgments depends on jurisdiction at the outset, not what
happens in the course of the case.

Traditional

A state has jurisdiction over its residents, no matter where they may be. It also has jurisdiction over property within
the state. But due process bars states from extending their power beyond their state borders.

Minimum Contacts and Long Arm Statutes

Jurisdiction can be extended to parties that have certain minimum contacts with the state, as limited by the
Constitution and by the States relevant long-arm statutes. "Due process requires only that in order to
subject a defendant to a judgment in personam, if he be not present within the territory of the forum,
he have certain minimum contacts with it such that the maintenance of the suit does not offend
'traditional notions of fair play and substantial justice.'" (Intl Shoe)
These activities usually need to be continuous and systematic. A "casual" presence or even the conduct of single or
isolated activities is not enough to establish presence. Although in certain circumstances, it is possible, depending
on the nature, quality, and circumstances of their commission.
If a company enjoys the privileges that come with doing business in a state, e.g. the protection of the laws of the
state, the exercise of its privileges comes with a price, a legal obligation to the laws of the state and consequently,
its judicial system, especially with regards to issues arising from the business that the conduct was about.
Two-step Test.
1. is there a long arm statute authorizing service?
2. is that statute constitutional? Many statutes are tied to Constitutional limits of p.j. (min.
contacts). But not all. Always examine statute first.
3. Does defendant meet the requirements of the statute? Is jurisdiction specific or general?
Factors to consider:

forum State's interest in adjudicating the dispute;

plaintiff's interest in obtaining convenient and effective relief when such relief cannot be protected by the
choice of forum;

interstate (federal) judiciary's interest in achieving the most efficient resolution of controversies;

shared interest of several States in furthering fundamental and substantive social policies.
What does minimum contacts mean?
1. It is foreseeable that your products would end up there.
2. That you benefit from the state.
3. That you purposefully avail yourself of the benefits or privileges of doing business there.
4. Reasonably anticipate being subject to the jurisdiction of the court there.

Legislative Reasons for Long-Arm Statutes

1. to serve and protect the interests of state residents.
2. state has contacts with the events giving rise to the litigation.
3. substantive state regulation of a class of cases, e.g. over insurance cases, etc.
"If a corporation elects to sell its products for ultimate use in another State, it is not unjust to hold it answerable
there for any damage caused by defects in those products." Defendant must engage in act or conduct by
which it invokes the benefits and protections of the laws of the forum state.
Shift from Pennoyer to Intl Shoe standard is due to the lowered cost and increased ease of litigation away from
home. Advances in transportation, communication.
The minimum contacts requirement is for defendant's protection. Against frivolous lawsuits and the burdens of
litigating in a distant or inconvenient forum; acts to ensure that the States do not reach beyond the status given to
them as coequal sovereigns in a federal system.

The New York Court of Appeals faced a similar case in Feathers v. McLucas, 15 N.Y.2d 443, but ruled that
there was a difference between where the tortious consequences became apparent and the place of the
tortious act. "the place of the 'tort' is not necessarily the same as the place of the defendant's commission
of the 'tortious act'."
In Green v. Advance Ross Electronics Corp., 86 Ill.2d 431, the court ruled that the Ill. long-arm statute did
not reach to a former director who lived and worked in Texas, while the company was incorporated in Ill.
"the consequences upon which [Advance Ross relies] are too remote from the misconduct of Green, Sr., to
support the conclusion that the tortious acts complained of were committed in Illinois. The situs of the last
event whose happening was necessary to hold Green, Sr., liable was in Texas."
The phrase "within the state" has been interpreted more liberally when the tort is intentional. See Murphy
v. Erwin-Wasey, Inc, 460 F.2d 661. Plaintiff alleged defendant had engaged in fraud and deceit. Plaintiff had
been in Ma., and defendant in New York. Court ruled that there was jurisdiction due to the intentional
nature of the tort, even if defendant had not entered the state.

FRCP 4(k)(1)(A) is the Federal long-arm statute. In theory Congress can reach wherever it wants. In practice it has
not done that. Congress has only authorized federal courts to exercise the same jurisdiction as the state courts in
the states that they are located.

General v. Specific Personal Jurisdiction

The kind of contacts that a party has may give rise to either general jurisdiction or specific jurisdiction. If they are of
a continuous and systematic nature, they can give rise to general jurisdiction. Otherwise, they will only allow
jurisdiction in actions related to those contacts (specific). See Helicopteros, no general jurisdiction because contacts
insufficient to support general jurisdiction.
Corporations are deemed to be resident in the state of incorporation, and place of principal business.

Property

States, even after Intl Shoe, have jurisdiction over property within the state. But such property cannot be used to
obtain quasi-in-rem jurisdiction over a party without also showing that the party has minimum contacts in
accordance with Intl Shoe. (Shaffer v. Heitner).
When property is attached by the court, and notice delivered to the property, the owner is assumed to have been
served with notice, because he should be aware of what happens to his property (his agent/caretaker would inform
him). Attachment must occur at outset of case, not at conclusion (Pennoyer).
Quasi-in-rem jurisdiction limits recovery to value of the property.
Attachment of property:
Doehr Court applied a modified version of the Mathews 3-part test.
1. considering private interest that will be affected by attachment;
2. examination of risk of erroneous deprivation via the process in question, and value of extra safeguards;
3. primary attention paid to interest of the party seeking the attachment
4. and due regard for government's ancillary interest in providing the procedure or not having greater protections.

Physical Presence

Burnham v. Superior Court: Nothing about Intl Shoe changes the principle that physical presence in a state is
sufficient to establish jurisdiction.

Consent

Personal jurisdiction can be waived if parties consent to jurisdiction.

Consent can be given through contracts Carnival Cruise Lines. Contract was upheld. Parties waive their right,
essentially. And court allows it.

The Internet

Tricky area. Court distinguished in Pavlovich between interactive v. passive sites, and the extent/type of contact.
But it held that contacts must still be substantial. Was not willing to make everyone who uses the Internet, subject
to suit wherever the website they host/visit is based. The effects test, that you can be sued wherever your actions
have an effect (from Calder v. Jones) is too wide to be applied.

Service of process has been made in the airspace of a State too - see Grace v. MacArthur, 170 F.Supp. 442.
Courts are allowed to exercise jurisdiction over citizens who are absent from their geographical jurisdiction.
See Blackmer v. United States, 284 U.S. 421, 438-39. This also applies to states. See Milliken v. Meyer, 311
U.S. 457.
If plaintiff is not a citizen or resident, but sues defendant in defendant's own state, defendant is entitled to
cross-claim against plaintiff. And judgment, if entered against plaintiff, must be respected by all states
including plaintiff's own - Full Faith and Credit. See Adam v. Saenger, 303 U.S. 59.

Notice

Notice is a procedural right, a handmaiden to the opportunity to be heard.

Parties must be given adequate notice of a suit. Notice cannot be a sham, must be reasonably calculated to inform
potential parties about the action (Mullane v. Central Hanover Bank). Also see Pennoyer v. Neff. Notice by mail is
allowed.
Notice need not be given to unknown parties per se (since they are unknown), or missing parties. Just reasonably
calculated.
Notice for an action in rem can be done via public announcement, e.g. newspaper ad, etc. Because you seek to
notify the whole world, all possible defendants including unknown ones. Notice for an action in personam or even
quasi-in-rem is directed at specific individuals and therefore requires personal notice where possible.
An elementary and fundamental requirement of due process... is notice reasonably calculated... to apprise
interested parties of the pendency of the action and afford them an opportunity to present their objections...
Publication plus supplemental notice is usually sufficient. Supplemental notice is posting on property.

Opportunity to be Heard

an opportunity to be heard includes an opportunity to present evidence, to question witnesses, challenge the
charges, etc.
Parties must be given the opportunity to be heard before action is taken to deprive them of property replevin
cases. Fuentes. Procedures must be calculated to allow them to contest the deprivation before it occurs.
Courts refuse to allow attachment of property when unnecessary, and done just to harass a party. Property can only
be attached at the outset when there is danger that it might be lost or disposed of. Or to protect the public, secure
jurisdiction (in rem). In Doehr, Court said that defendant MUST be given chance to be heard before a determination
of probable cause for attachment of property can be made. Otherwise court will make decision based only on one
side of the argument. This can be circumvented in exigent circumstances, e.g. need to establish p.j. over the
defendant.
In Goldberg, the Court says that the Government has an interest in the dignity and well-being of all people within its
borders. It has interests on the other side as well, the same side as the plaintiffs. If the Government does indeed
have an interest and an obligation to foster people's dignity and well-being, then the process of the hearing matters
too. The Government has an interest in establishing a forum and process that makes people leave feeling that they
have been respected. What Mathews tells us is that we have process for accuracy alone. Goldberg tells us that
accuracy isn't the only reason for process. There are interests in the person's dignity, etc.
3 part Mathews test:
1. the individual's interest in the benefit - Goldberg (welfare) vs Mathews (disability)
2. accuracy of the proceedings - Mathews (doctors' reports on the disability) vs Goldberg (self-reporting, etc.)
3. government's interests. In Mathews outweigh the recipients' interests.

Subject Matter Jurisdiction

Diversity
Opposing parties must be from different states. Complete diversity at the start of the suit. (Impleading a party
under Rule 14 does not destroy diversity?) Also valid when a party is not a citizen of the United States.
Supplemental jurisdiction cannot destroy diversity - 1367(b). Plaintiffs cannot make claims against parties joined
under Rule 14, 19, 20 or 24, when such claims would destroy jurisdiction. Neither can people seeking to intervene
as plaintiffs under Rule 24, or people proposed to be joined under Rule 19 as plaintiffs.

Determination of citizenship is, however, made based upon federal and not state law. Citizenship determination is
made at the outset of the case; subsequent changes in citizenship do not matter. Distinction between citizenship,
domicile, and residence.
citizenship in a state required US citizenship and domicile with that state. Domicile is wherever the person seeks to
return to when absent from there. Residence in a state does not establish domicile without an accompanying intent
to remain there.
Corporations reside in state of incorporation and principal place of business 3 tests for principal place of business
for corporations:
1. "nerve center" test - "the locus of corporate decision-making authority and overall control"
2. "corporate activities"/"operating assets" test - location of a corporation's production or service activities is
given greater weight
"total activity" test - hybrid of the above two. considers all the circumstances surrounding the corporation's
business to determine principal place of business. "a realistic, flexible, and nonformalistic approach."
Unincorporated associations and limited partnerships do not fall into the previous category of corporations. Courts
will instead consider citizenship of each of their members or partners.
Note 7 (p. 269): courts have refused diversity jurisdiction when improperly or collusively made by assigning away
interest.
Note 8: Congress has ruled that the appointment of administrators of an estate cannot create or destroy diversity:
the administrator will be considered a citizen of the same State as the decedent or infant/incompetent.
Note 9: Courts will also refuse diversity (or allow it) when either side attempts to name nominal parties, to destroy
or create diversity jurisdiction.
Note 10: Plaintiffs used to be able to destroy diversity by naming fictitious defendants, so long as these defendants
were later identified during the course of the trial. Congress in 1988 amended 28 U.S.C. 1441(a) to disregard the
citizenship of such fictitious defendants for purposes of removal to federal court.
Amount in controversy must exceed $75,000. A plaintiff may aggregate different claims, even arising from
different T&O, to reach this amount, but only against the same defendant. Two plaintiffs cannot aggregate their
claims to reach the amount, unless they have a joint interest in the property. Amount only needs to be claimed in
good faith. It must appear to a legal certainty that it will not, in order for claim to be dismissed for failure to meet
amount in controversy.
Amount of damages should be measured by plaintiff's losses; profits unjustly received by defendant; and if
governing law allows, punitive damages (NY law only allows punitive damages in cases of "gross and wanton"
conduct).
Value of injunctive relief is assessed with reference to the right plaintiff seeks to protect, and the extent of the
impairment to be prevented by the injunction. Can include not just past losses but also potential ones.
Value is hard to assess for injunctive or declaratory relief. Some approaches:
1. use the value to the plaintiff.
2. use the value from the point of view of the party seeking to invoke federal jurisdiction.
3. Use value from perspective of either plaintiff or defendant.
Certain state laws cap damages. You can't claim more than a certain amount in damages.

Federal Question

Federal courts have jurisdiction when a claim arises under federal law. Federal judges are more likely, so the
argument goes, to treat sympathetically Supreme Court decisions regarding federal issues. It is easier and more
likely to achieve uniformity and spread of application. Local judges are more likely to weigh local considerations and
treat Supreme Court decisions with less impartiality. This goes for both district and appellate judges. By having
inferior courts hear federal questions first, the Supreme Court is freed up to solve new judicial problems, rather than
rehear old ones over and over again.
Since all federal judges are chosen under the same procedures, there is more likely to be greater similarity in the
interpretation of federal law. State court judges are elected and federal judges are not. This promotes a more
uniform and correct application of federal law. But Presidents change regularly, composition of the Senate changes
regularly... federal judges are not all alike. consistency, uniformity
Federal judges are arguably insulated from politics, and above local community pressure. Probably not entirely true,
but perhaps they are more insulated than local state judges.
Federal courts and judges arguably have more expertise in federal issues. 75% of the cases heard in federal courts
arise under federal law. Expertise. (this of course implies that there is a right way to interpret the law)
Existence of an alternative forum might in itself encourage state courts to be more attentive in treating issues of
federal right.

Federal courts are concerned primarily with the interests of the nation as a whole; state courts are concerned
primarily with the interests of their state.
the counter to the "expertise" argument is that the judges, having seen the same issues over and over again,
become jaded and no longer pay as close attention to the details of each case.
All of these reasons, however, do not mean that only federal courts should be allowed to hear federal questions.
- there is a limit to the volume of cases they can handle
- there could be hardships related to the geographical location of the courts and having one's case heard
- if it is in a party's interest, they can either bring the case in federal court or have it removed there, on their own.
Give them a choice.
- sometimes the validity of the state's laws or actions are at issue. In such cases, it seems prudent to let the state's
courts take first crack at it, subject to final and ultimate review by the Supreme Court.
Just because a claim involves an issue of federal law, does not mean that the court has jurisdiction over it.
To determine if federal law creates a right for private action, we must ask: Did Congress intended to create
such a right?
Four part test to help answer the question:
1. is the plaintiff one of the class for whose especial benefit the statute was enacted (does the statute create a
federal right in favor of the plaintiff)
2. is there any indication of legislative intent, either explicit or implicit, to create or deny such a remedy?
3. is it consistent with the underlying purposes of the legislative scheme (does it comport with the policy rationale
behind the statute) to allow for such a remedy?
4. is the cause of action traditionally one for state law?
Federal questions must arise on the face of the complaint the well-pleaded complaint rule. "The complainant in
the first instance shall be confined to a statement of its cause of action, leaving to the defendant to set up in his
answer what his defense is, and if anything more than a denial of complainant's cause of action, imposing upon the
defendant the burden of proving such a defense."
Artful pleading is the opposite: disguising a claim so it looks like it arises under state law when it is really a
federal question.
Cannot claim federal question just because defendant is anticipated to raise a federal issue. The key thing to take
away from the well-pleaded complaint rule and the artful pleading rule, is that the federal courts retain the right to
cut to the chase. If they think the plaintiff is trying to make a state cause of action a federal one, or vice versa, the
court will not allow itself to be fraudulently cheated of jurisdiction. The court retains the power to assert jurisdiction
if it believes that there really is a federal question at issue, or to throw the case out if it thinks there is none, despite
what the pleading says.
In Merrell Dow, Stevens is upset about that, wondering how, if Congress and the Supreme Court doesn't believe that
the FDCA permits for a cause of action, how can the Court then say that it can be a state cause of action? Brennan's
answer is that there is a difference between there not being any recourse allowed under federal law,
and a state law applying standards set by federal law in a state cause of action.

Supplemental

When there is original jurisdiction over a case, court may hear other claims, over which it may not have jurisdiction,
so long as they arise out of the same T&O. Broad construal of what a case or controversy means. This is
supplemental jurisdiction (combination of traditional pendent and ancillary jurisdiction concepts). Court also has
discretion not to hear the case. See 1367 for the factor test. No supp. jur. if diversity would be destroyed (Kroger),
or if it would be an end run around the statutory limits on jurisdiction imposed by 1332 (see Aldinger).
Scalia - The Constitution must have given to the court the capacity to take it, and an act of Congress must have
supplied it." Not just Constitutional grant of authority to hear the case, but also statutory grant by Congress. Taken
from Finley v. US. In response, Congress passed 28 USC 1367.
Discretionary factors of Supp.Jur.:
1. Claim raises a novel or complex issue of State law
2. Claim substantially predominates over claim or claims over which fed. court has original jurisdiction
3. Fed. court has dismissed all claims over which it has original jurisdiction (note, still not compulsory to
remand)
4. Exceptional circumstances creating other compelling reasons for declining jurisdiction

Removal

Defendant can request removal of a case to federal court in the same district. But not if defendant is in home State,
unless there is a federal question. Goes to policy reason: removal is meant to aid defendants who are not in their
home state.

Entire case can be removed, including claims that do not meet s.m.j., but will meet supp. jur. Or federal court can
take just the claims it wants, and remand all matters in which State law predominates.

Venue - 1391
Defendant must be able to litigate effectively in the venue without substantial hardship (find the exact words).
Where is the most efficient and convenient place to try the suit?
Suit can only be brought in:
a. Judicial district where ANY defendant resides, IF all defendants reside in same State
b. Judicial district in which a substantial part of the events or omissions giving rise to claim occurred, or
substantial part of property that is the subject of the action is situated
c. Judicial district in which any defendant is subject to p.j. at the time the action is commenced, ONLY IF no
other district in which action may be brought, i.e. a and b not met. OR (in fed. qn cases)
d. Judicial district in which any defendant may be found, if a and b not met.
Corporation deemed to reside in any district in which it is subject to p.j. In multi-district State, corporation deemed
to reside in any district in which its contacts would be sufficient for p.j. if that district were a separate State. If no
such district, then corporation resides in district with most significant contacts.

Transfer - 1404

Defendant can request for a transfer of venue. For convenience of parties and witnesses, in the interest of
justice.
You can only transfer to where it could have been brought (must meet all requirements of jurisdiction to begin with).

Forum Non Conveniens

Motion to dismiss under 12(b)(3) improper venue. Chestnut case: Gulf Oil Corp v. Gilbert.
Test
Interests to consider:

private interest of the litigants (burden and cost of litigating)

relative ease of access to sources of proof

availability of compulsory process for attendance of the unwilling

cost of obtaining attendance of willing witnesses

possibility of view of premises where appropriate to the action

other practical problems that would make the trial easy, expeditious, and inexpensive

enforceability of the judgment

congestion in the courts

burden of jury duty for people who have no connection or interest in the litigation

local interest in having localized controversies decided at home. Allowing people who are affected by the
dispute to be able to see and be more easily informed about what's going on, and possibly jump in.

the court's familiarity with the laws to be applied

Defendants interests must strongly outweigh plaintiffs in order for motion to be granted. Forum choice should not
be a means of harassing the defendant. FNC allows courts to sidestep cases that should not be in their dockets
despite presence of jurisdictional factors.

Forum Shopping

See BCMD, Pruitt case, and articles in Reader. Forum shopping important part of case. Find good precedents,
sympathetic judges (judge shopping).
Bringing suit in a federal court also means jury will be selected from a wider geographical area, a larger jury pool.
Lawyers shop for: judges, more favorable substantive law (in the case of State laws), more favorable procedures.

Pleading Documents
Complaint
Complaint must state claim. Courts allowed to FIND claims (see Pruitt).
Rule 8(a). Pleading setting forth a claim for relief must contain:
a. Names of parties
b. Date of events in question
c. Short and plain statement, giving grounds for courts jurisdiction, unless stated in a previous pleading
d. Short and plain statement of claim showing that plaintiff entitled to relief
e. Demand for judgment for the relief sought
f.
Signature

Low standard is to ensure access to the courts. But also arguable that w/o a lawyer, you are sunk. Procedure trumps
substance. System chooses to let in as many claims as possible, and let discovery weed out the frivolous claims.
Pleadings can set forth alternate or hypothetical legal theories. Theories need not be consistent.
8(f): All pleadings shall be so construed as to do substantial justice. Courts are given leeway to find claims/grounds
for relief (see Pruitt).
How specific or general the complaint should be, depends on what the courts standards are. In Case, the standard
was strict; there had to be a claim on the face of the complaint. In Pruitt, the court was willing to help Pruitt find a
legal leg to stand on. It searched the complaint to ensure there were no legal claims before dismissing it. The Case
court did not.
A downside to making your complaint too specific, is that if you get one of the allegations wrong, your whole suit
might be endangered. If your complaint is broad enough, it's harder to get it thrown out because you got something
wrong. If you specify four things, and the defendant changes operational practices such that all four points are
moot, then you lose your case. It will get dismissed.

Answer

Answer must give, in corresponding paragraph form, defendants answer to all points made in original complaint.
Options are:
Admit.

Deny.

Insufficient information to form a belief (check exact wording)

Failure to deny is considered an admission.
Answer must set forth all affirmative defenses. Need not be consistent. Should set forth all alternate theories.
Answer must also contain all counter-claims and cross-claims that are sought to be brought.
The answer must request for a jury trial if one is desired. Usually not done until a judge is assigned. If judge
considered unsympathetic, request for a jury. If request not submitted, right to jury trial is considered waived.

Amendments Rule 15

Amendments are allowed to be made up until trial. Must be timely. Amendments should be made as discovery
progresses and new evidence discovered.
15(c) Amendments relate back to date of original pleading, when allowed by statute of limitations; claim or defense
arose out of the T&O set forth in original pleading; amendment changes named party provided claim or defense
arose out of same T&O as original pleading AND new party has received notice of institution of the action such that
it will not be prejudiced in maintaining a defense on the merits, AND new party knew or should have known that,
but for the mistake in identity, action would have been brought against it.
amendments are to be allowed whenever justice so requires.
The opposing party must show prejudice in order to refuse amendment.
Trial court's decision is only subject to review on basis of abuse of discretion.

12(b)(1)
12(b)(2)
12(b)(3)
12(b)(4)
12(b)(5)
12(b)(6)
12(b)(7)

Motions and Dismissals

lack of s.m.j.
lack of p.j.
improper venue
insufficiency of process
insufficiency of service of process
failure to state a claim upon which relief can be granted
failure to join a necessary party under Rule 19

12(e) Motion for a more definite statement.

If not raised, 12(b)(2) to (5) are waived.
12(b)(1) can be raised at any time (see Capron v. Van Noorden).
Frivolous lawsuits are not ruled out so much by pleadings, answers, and motions for dismissal, as they are through
discovery and summary judgment at the end of discovery.
A prima facie pleading is not necessary to survive a 12(b)(6) motion. The standard is the Rule 8(a) standard.

Rule 11, 23.1

Rule 11 is meant to ensure truthful pleadings. Penalties for both the attorney and the client, depending on what the
error is.
Rule 11 is concerned with:
1. improper purposes
2. misrepresentation of law
3. misrepresentation of facts
4. misrepresentation of facts - related to a denial.
Rule 11 covers everything - complaints, answers, amendments, etc. Every part of the litigation.
Clients are not responsible for 11(b)(2), misrepresentations of law. Because it is not his area of expertise. It is the
lawyer who is supposed to deal with the law. The client is only responsible for factual errors. Only the lawyer can
be sanctioned for misrepresenting the law. Lawyers need to represent their clients. Clients want to know they can
trust their lawyers, and the lawyers don't have divided loyalties. What Rule 11 says, is that while that's true, the
court system also wants the lawyer to verify what's going on. that the lawyer has a duty to make truthful
representations to the court.
but exactly what is reasonable for an attorney to do? And who does Rule 11 ask the attorney to work for?
- reasonableness dependent on time limitations (statute of limitations), availability of information.
- Rule 11 wants the attorney to be a truth-seeker, not just a representative.
Rule 11(b)(1) tries to prevent harassment by lawsuit, etc.
(2) is about law. You can't misrepresent the law to the court.
(3) is about fact. You can't misrepresent the facts to the court.
11(b)(2) allows you to make claims that may not be warranted by existing law. You can't misrepresent the law, but
you can argue for an extension or modification or change in law. Provided that you have a non-frivolous argument
for it.
11(b)(3) and (4) concern themselves with evidentiary support. Either that you are likely to have it after discovery
(reasonable discovery), or that you already have it.
W.r.t. factual representations, you need to identify what you don't know to the court. Either "here is my evidence"
or "I think this is true, but I can't prove it w/o discovery."
W.r.t. law, you don't need to identify or flag your changes. This is because the court is supposed to know the law.
The court does not do fact-finding though. It doesn't know what the facts really are at the outset of the case. But
at the outset of the case, it already knows what the law is.
If you are arguing for a change in law, you probably will need to flag it though. Show that you are aware of the case
law that is against you. But still arguing that it should change. You don't want to not mention cases that don't go
your way, and let the court find out about them from your opponent.
Rule 11 does not require sanctions. They are not mandatory.
Rule 11 also applies to itself. You could file a Rule 11 motion on someone else's Rule 11 motion. In theory perhaps,
this would be a check on the frivolous use of Rule 11 motions.
"In considering sanctions regarding a factual claim, the initial focus of the district court should be on
whether an objectively reasonable evidentiary basis for the claim was demonstrated in pretrial
proceedings or at trial. Where such a basis was shown, no inquiry into the adequacy of the attorney's
pre-filing investigation is necessary."
Rule 11 contains a safe harbor provision opposing counsel is supposed to give the offending counsel a chance to
amend her filing.

Joinder

To join claims and parties you need jurisdiction over both. Subject matter, and personal. The preclusive aspect of
the trial depends on the jurisdiction too - preclusion can only be applied to what the court has jurisdiction over to
begin with. Joinder must be permitted by the FRCP. Joinder has preclusive effects.
Court has discretion to control claim and party joinder, under Rule 20(b) (court can order separate trials to prevent
embarrassment, delay, expense arising from inclusion of a party against whom the party asserts no claim and who
asserts no claim against the party; or to prevent delay or prejudice). Rule 42 also allows for joinder or separation of
actions, in order to prevent delay or expense.

Claims

Rule 18(a). Parties can join all claims against other parties, even if they arise out of different T&O, provided s.m.j. is
met. Anyone with an original claim, counter-claim, cross-claim, third-party claim, can join as many other claims as
desired, against an opposing party.
If a counter-claim arises from the same T&O as the original claim, then it must be brought, or else claim preclusion
will apply: it is a compulsory counter-claim.
There are no compulsory cross-claims.

If plaintiff fails to bring all the claims arising from the same T&O, later claims will be barred under res judicata, claim
preclusion.

Parties

Rule 14. Third party defendants can be impleaded, as long as they are liable to the defendant in the original action.
Plaintiff can assert claims against third party defendant, provided diversity is not destroyed. But third party
defendant can assert claims against plaintiff even if diversity is destroyed. It is debatable if plaintiff is then allowed
to bring a compulsory counter-claim under 1367(b).
Argument for it being allowed, is that the original plaintiff is now a defendant and thus not barred. Argument for it
not being allowed, is that the plaintiff is still the plaintiff. If we do not allow them to bring that compulsory counterclaim, then they must be allowed another day in court to try that counter-claim. If we do allow them though, they
would not have diversity. 1367(b) only applies if original jurisdiction is based on diversity. If it is based on a federal
question, it does not apply.
Rule 19(a). If joinder will not deprive court of s.m.j. and there is p.j., a person must be joined if:
1. in his absence there will not be complete relief for existing parties
2. person claims an interest relating to the subject of the action and disposing of the matter w/o the person
may:
a. impair or impede the persons ability to tprotect that interest
b. leave any of the existing parties subject to a substantial risk of incurring multiple or otherwise
inconsistent obligations by reason of the claimed interest
The person will be ordered to joined in such a case. If the person refuses, he might be made an involuntary plaintiff,
or made a defendant.
If joined party objects that venue is improper or joinder renders venue of the action improper, party will be
dismissed from the action.
Rule 19(a) is not the same as 20(a). Plaintiff cannot be forced to join a permissive party just for efficiency or
expediency. Plaintiff remains master of his claim.
Rule 19(b). If joinder under 19(a) not possible, court is to determine if judgment can still be rendered, and the case
should proceed. Factors to consider:
1. what extent a judgment if rendered might be prejudicial to the person absent or present parties
2. extent to which the prejudice can be lessened or avoided (by shaping the relief, protective provisions in
judgment)
3. if judgment rendered in persons absence will be adequate
4. if plaintiff will have an adequate remedy upon actions dismissal for nonjoinder
Rule 20(a). Permissive joinder. Persons may join as plaintiffs if :
1. they assert a right jointly or severally, arising out of the same T&O,
2.
and there is a common question of law or fact to all of them.
Defendants may do the same as well if they are sued, under the same conditions. But all who seek to join in
this way must be sued (cannot intervene as a defendant).
Rule 21. Misjoinder is not grounds for dismissal. Court has authority to drop or add parties on its own initiative.

Intervention FRCP 24

Other parties may intervene, by right or by permission, as both plaintiffs and defendants.
By right: (1) when statute confers an unconditional right to intervene
(2) when applicant claims an interest relating to subject of action, and disposition of action w/o applicant
would impede or impair applicants ability to protect that interest, unless interest is adequately
represented by existing parties.
By permission:
(1) when statute confers a conditional right to intervene
(2) when applicants claim or defense and main action have a question of law or fact in common.
Court is to consider if intervention will unduly delay or prejudice the adjudication of original
parties rights.
Interventions are allowed for reasons of judicial economy. But intervention cannot destroy diversity 1367(b).

Class Actions

There are three kinds, described by Rule 23(b).

(1) Limited fund. Defendant will want to aggregate all the cases to reduce the punitive damages. If the
cases are handled individually, each jury will think that they need to punish the company, and the total
amount of aggregated punitive damages will be very high, higher than what you would get in a single
class action. Plaintiffs share damages out of a limited fund defendant sets up.
(2) Injunctive relief. Environmental cases are typical. A collective action cuts down on conflicting
judgments.
(3) Money damages. (Shutts). When there are too many claims and plaintiffs. The theory is

that if we didn't make it a collective class action, the court would be drowned in litigation,
and it would be inefficient. Also when the claims are small, and no one individual plaintiff
would sue to get the paltry sum back. By allowing a class action, we hold defendants who
harm enough people, accountable, even if the damages are small. If class action was not
allowed, then the defendant could harm thousands of people for $50 or $100 each.
Through the attorney's fees doctrine, we authorize private attorney generals.
The critique that the attorneys get a ton of money and the plaintiffs get a little, is a little
unfair. Because the plaintiffs get what they are owed, and the attorney gets a fair sum for
representing the number of plaintiffs. A more valid critique might be that it imbalances
the incentives. Attorneys will just be more likely to raise their costs, recover that, and still
get their third. Attorney's fees can be calculated under either the lodestar method or the
percentage method. The lodestar method encourages plaintiffs' attorneys to keep going
even when the defendant wants to settle: pays them for hours billed. The percentage
method, however, pushes plaintiff attorneys to try and settle as soon as possible to keep
their costs down.
Rule 23(a)
(1) numerosity. There must be enough claims that joinder of all parties is impractical. The litigation system's
preference is that we actually get the group together, join the group together. But at times the number will be so
great that it is impractical to get the whole group together. The number is arbitrary, but normally around 20 to 30.
(2) commonality. The representative plaintiff and the members of the class must have a question of law or fact in
common.
(3) typicality. The representative plaintiff's claim must be typical of the members of the class.
(4) adequacy. Looks at the plaintiffs to see if they are adequate and will protect the interests of the class. It will also
look at the lawyer too, to make sure the attorney is also adequate to the task.
At the end of the day, you need to fulfill all 4 of the 23(a) requirements and fall into one of the 23(b)
categories.
Choice of law in a class action, the law applied must have some relation to the transactions at issue. Shutts.
Usually more than one class representative is named in the suit, so they cannot be bought off as easily.
Plaintiffs in class action do not need to meet min. contacts standard. Only require: notice, opportunity to be heard,
adequate representation, and opportunity to opt out.
If they were to be counter-claimed against, no one knows if min. contacts would be needed, but Rubenstein
theorizes yes. We might allow defendant to sever counter-claims and bring them another time, even if compulsory.
Or argument could be made that since they chose to avail themselves of laws, they should also expect to be
counter-claimed against. But was this made explicit at start of class action and expected?
If plaintiffs opt out, they are not precluded: have not had their day in court.
For class actions, only citizenship of named parties is considered for diversity purposes.
Aggregation still not allowed to meet amount in controversy. Some courts have held that 1367, authorizing
supplemental jurisdiction, allows other plaintiffs to join an original claim that meets amount in controversy, even if
supplemental claims do not.

Discovery
Discovery has 3 purposes:
Dress rehearsal
Facilitates settlement w/o trial
Clears up and reveals what the issues are in the case
Discovery takes place largely w/o judicial intervention, unless someone runs to the judge with a complaint.
The classic defense that the defendants will use in protecting evidence, is:
1) ownership. Possession is 9/10ths of the law. And if you have it, the plaintiff will have to request discovery,
which you can withhold and force them to go to the judge for. Thus they spend even more time and
resources to try and get it.
2) Privilege. Claiming that the material is privileged.

Relevance, Privilege, Attorney Work Product

26(b)(1) requires that all materials shared in discovery or requested in discovery, be relevant.

Courts frequently try not to sort out relevance grounds in discovery, but in trial under admissibility: whether a
certain piece of evidence is admissible in trial. They're prepared to err on the side of liberality, and give people
more to begin with.
In almost any kind of case you can think of, the defendant has most of the evidence. Discovery is thus a powerful
tool for the plaintiff, because it allows him to get a lot of evidence essentially for free.
Evidence intended solely to impeach a witness testimony need not be disclosed under Rule 26.
The work-product doctrine: relevant material that is non-privileged can still be withheld from discovery and
disclosure, if it was material produced in anticipation of litigation or for trial by the lawyer or someone connected to
the lawyer. Stuff that's prepared specifically in anticipation of litigation, unless there is substantial need and undue
hardship in getting it, is protected under the work-product doctrine.
Court will protect against an attorney disclosing his mental impressions, conclusions, opinions, legal theories. These
are absolutely privileged and not discoverable by any means. Other documents may be qualified work product and
discoverable, upon a showing of subst. need and undue hardship, e.g. statements from deceased witnesses.
Experts need only be identified if they are going to testify at trial. Other experts consulted in preparation for trial
may be deposed or subject to interrogatory only under 35(b) (expert report of a physical or mental exam) or a
showing of exceptional circumstances, that the party cannot obtain facts or opinions on same subject by other
means.
Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule

27
30
31
33
34
35
36
37
45

deposition before action; deposition pending appeal

Depositions
Depositions by written questions
Interrogatories to Parties. 33(d) business records.
Production of Documents. Only upon other parties.
Physical/Mental Examinations.
Admissions
Sanctions for Failure to Make or Cooperate in Discovery
Subpoenas. To obtain testimony or documents from non-parties.

Discovery Devices

Interrogatories
Depositions
Requests for Documents
Medical/Psychological Examinations
Can ask for a court order compelling an examination.

Pre-Trial
Judges or Juries Summary Judgment
Summary judgment only when there are no genuine issues of material fact in dispute.
All inferences to be drawn in light most favorable to non-moving party. (adickes)
To overcome summary judgment, non-moving party does not need a preponderance of the evidence. As long as
inferences that could be drawn are in dispute. If both sides have 50-50, then no summ. judgment. (Valley national
Bank)
But other courts disagree (Houchens). Maintain that the non-moving party must make a showing sufficient to
establish the existence of material facts essential to their case and for which they bear the burden of proof at trial.
Summary judgment can be brought on just parts of the lawsuit as well. 56(c) allows for summ. Judgment on liability
alone, although damages may still be disputed.
5 questions to ask for summ. Judgment:
1. Whats the issue in the lawsuit?
2. Who has burden of proof at trial?
3. Whats the standard for burden of proof?
4. What evidence would they introduce?
5. Is the evidence in dispute?
When a partys case turns upon cross-examination of a witness, court may or may not let case go to trial. In
Lundeen, case did not go to trial because witness was supposedly unbiased; a neutral witness. In Cross, party was
the witness, and therefore cross-examination could have been important. (although in Lundeen, witness was also
beyond p.j. of court).
Summ. Judgment is only if facts are not genuinely in dispute. Judge has to decide.
Summ. Judgment is appealable.

Moving party bears burden of showing absence of facts in dispute. Burden of proof for summ. judgment depends on
who has burden of proof at trial. If moving party does, then moving party must show sufficient evidence that it
would get a directed verdict at trial. If non-moving party does, moving party must show affirmative evidence
negating an element of non-moving partys claim.
Celotex holds that the defendant, if the moving party, has to do more than just make an assertion, but less than
show affirmative evidence. Moving party must show the court that opposing party has no evidence, through what
has been found in discovery: depositions, interrogatories, documents. So all the discovered evidence does not
substantiate the claim. The Celotex holding means that there will be more summary judgments. Rehnquist says that
notice pleading has eroded the power of Rule 12 (motion to dismiss), so now we have to strengthen Rule 56 to get
rid of more frivolous cases.
Level of burden of proof at trial should be considered at summ. judgment stage. Preponderance, clear and
convincing, beyond reasonable doubt, etc. To determine if it could be met.

Trial
Jury Trial by Right
The Seventh Amendment states that jury trial only applies for cases under common law, not equity. Uniquely, this
applies only to federal and not state courts. The Supreme Court has never taken the Seventh Amendment and said
it is applicable to the states. Most states, in their own Constitutions, have state trial by jury rights.
Jury trials only valid for cases of law, not equity.
The SC has set up a two part test.
A) how would the action be thought of in 1791, when the Amendment was first enacted. The Court does it by
analogy, by thinking what this claim is analogous to, in 1791 (because some forms of action did not exist in
1791, e.g. a union member suing the labor union). what is the historical cause of action?
B) are they asking for money damages, or an injunction? Money damages is one of law and is sent to a jury;
injunctions are equitable ones and therefore do not get a jury. what is the remedy being sought?
If case has both legal and equitable claims, you have to try the legal cases to the jury first: a judgment by a judge
cannot pre-empt a jury judgment.
From a plaintiff's lawyers perspective, it's almost impossible to get your case to a jury. Because:
1. summary judgment stands in the way.
2. the directed verdict motion allows the judge either not to send the case to the jury or to take it away from the
jury.
3. jury trials can be waived if not asked for (although this would be your own fault for not asking for one)
4. Constitutional right to jury trial only applies to certain kinds of cases.
5. Even if you have a jury, and none of the above apply, the judge instructs the jury on the law before they go off to
deliberate. So the judge sets the parameters for them.
6. The judge can always overrule the jury's verdict after they have made a decision.

Jury Composition
Random selection by a chosen pooling method.
Voir dire. Lawyers will ask questions to see if juror will be sympathetic, favorable, or hostile. They try to present the
case without presenting the case. Interviews of jurors determine if they should be excused for bias, if they can be
impartial.
Strikes for cause are if juror is biased. Peremptory challenges do not need to be explained unless there is suspicion
of a clear and forbidden bias (ethnicity, gender, religion, etc.). Court will not allow unconstitutional peremptory
challenges: SC argued that it is the judge who dismisses the juror and thus it would be an unconstitutional use of
government power. Jury selection as government function.
But the judge will do everything possible not to dismiss jurors for cause (see Flowers).
Peremptory challenges might be an attempt to give parties more control, or a sense of more control, over their
case.
The race and gender discrimination theory suggests that we don't believe that they are relevant characteristics;
they are irrelevant to jury service, how the jury will decide and make choices. Or that they shouldn't matter. But
they do. They do matter and people of a certain race or gender do have a tendency to act in certain ways. They do
look at problems differently. See O'Connor's dissent.
One tension that Edmonson and J.E.B. embody is that between the law and facts. Reality vs. what we want to be
true. Normative vs. objective.
The second aspect of J.E.B. and Edmonson is "what makes race and gender special?" Why those characteristics and
not the others (sexual orientation, national origin, religion, etc.)? This is a matter of constitutional law.

Adjudication by Trial
Plaintiff puts on case.
Defendant cross-examines. Defendant can also make a Rule 50 motion, judgment as matter of law. Judge can
decide, deny, or hold in abeyance.

Defendant puts on case.

Plaintiff cross-examines. Plaintiff can make similar Rule 50 motion.
Closing arguments/statements.
Jury decides.
If a party made earlier Rule 50 motion, can renew at this point. And judge can decide if he wishes to grant it or let
jurys verdict abide.
A Rule 50 motion says that the case should never have gone to the jury. That the party that made the motion
should win as a matter of law: no reasonable jury could find. See Galloway evidence required too much inference
and therefore directed verdict rendered against plaintiff.
The standard for Rule 56 and Rule 50 is exactly the same. The plaintiff has the burden of proof, to
show by a preponderance of the evidence, each element of her cause of action. A 56 or 50 motion by
defendant is saying the P doesn't have sufficient evidence to carry some element of the claim. Asking
if a reasonable jury could find for her on that element, based on the evidence that she has. Is the
evidence legally sufficient?

Judgment
Judgment
Final judgment is only rendered after judge has decided on motions for new trial and directed verdict.
Appellate courts will only consider final judgments on appeal. If judgment not final, will not be considered.

Appeal
Rule 59 New trial motion.
Matters of fact are not relitigated at appeal. Only matters of law. (Lavender v. Kurn).
Four limits to Appellate Review:
1. alleged errors must appear in trial record
2. aggrieved party must have promptly objected to the trial court about the rulings or events that judge could have
addressed
3. errors must be substantial, not harmless error
4. errors must be mentioned in appellant's brief and the relevant portions of trial transcript cited and brought to
appellate court's attention
No appeals until final judgment rendered. Unless the judgment rendered is an injunction, or it is
certified (1292), or it is carved out under 54(b) as one claim out of many, or the appellate court grants
a writ of mandamus.
Mandamus when a party feels the trial judge has exceeded his authority and wants the appellate court to
intervene to restrain the judge. Mandamus is usually requested at the start of the case, over jurisdictional issues.

Claim Preclusion Res Judicata

For reasons of: Fairness, Efficiency, Finality.
All claims arising from the same T&O should be brought by the plaintiff at the same time. Otherwise, subsequent
claims arising from the T&O will be barred under res judicata, claim preclusion. A matter of judicial efficacy, fairness
for the defendant, to prevent continuous relitigation over the same issues.
Compulsory counter-claims (arising out of the same T&O) are precluded if not brought in the first action. Unless
court did not have jurisdiction over the counter-claim.
Final judgment.
Judgment must have been on the merits.
Claim (T&O) is the same in both suits.
Claim is only precluded between the same parties.

Issue Preclusion Collateral Estoppel

Same issue.
Actually litigated. An admission is not considered litigation (not worth cost of litigation in 1 st suit, not material to
claim, inconv. forum).
Issue was decided on the merits.
Issue must have been necessary to the judgment. Judgment in the alternative not sufficient.
Same parties (mutuality).
Whoever is sought to be estopped, must have had a full and fair chance to defend itself in earlier action. So, must
have been party in earlier suit, actual litigation, decision on merits.
Bernhard dispensed with mutuality requirement (non-mutual estoppel).

Defensive IP prevents plaintiffs from relitigating the same issues over and over again. We dont let them keep
litigating the same issue against different defendants until they win.
Offensive IP encourages litigation. Because plaintiffs would wait and see, until judgment is rendered against the D
on some issue. When that judgment is rendered, all the plaintiffs would then file suit and claim that issue
preclusion.
Guidelines for when to allow offensive non-mutual preclusion:
Guideline 0: Defendant must have been party to the first suit!
Guideline 1: If they could have joined in Case 1, dont let them run offensive IP in Case 2. They should have to
litigate the whole issue all over again. It also gives the D a chance to defend again.
Guideline 2: You may not be allowed to run offensive IP if you have an aberrant judgment. If there are 50 cases that
decided the same issue the other way, chances are unlikely that you will be allowed to run
offensive IP.
Guideline 3: Did the D really have an incentive to defend the issue in Case 1? Was it of sufficient worth?
Guideline 4: Difference in procedural rules? One more restrictive than the other?

Bigger Picture
Alternatives to Litigation
Tradeoffs. We accept a loss of fairness to gain efficiency or expediency.
ADR asks us to trade some fairness for more efficiency.
ADR sets up a new procedure, sidestepping the existing judicial system and the legislation written and passed to
deal with the same substantive issues. The company recognizes that these issues must be addressed, but sets up
its own system of dealing with the issues, through arbitration. But the company dictates the procedure governing
the system.
In Hooters and Circuit City, we see parties contracting themselves out of the legal adjudicatory system. (ADR)
In Hooters we saw problems resulting from the drafting and setting up of the arbitration procedure. It shocked the
conscience of the court. And the court refused to enforce people to enter that system. At what point would the
system become acceptable? Its unclear. Roughly, there must be some sense of symmetry between the parties.
Hooters stands for the principle that there must be some equality, at least procedurally, between the parties.
In CC, we saw a contrast between what was available under two different dispute-resolution systems: arbitration vs.
adjudication. A comparison of external inequalities, comparing the procedure of the system in federal court vs. the
procedure of the system in CCs arbitration agreement.
The holding of CC is that we can separate substance from process. And the process can be tweaked, as long as the
substantive right is retained. Rubenstein argues that this is not as fair as it seems allowing one party to control
the process gives them more power than the other.
Rubenstein isnt against tweaking the procedures. But certain procedures are more important than others, and
tweaking certain procedures have greater ramifications for fairness and equal power between the parties.
In labor disputes, it seems more likely that employees will sue employers than the other way around. It is not two
parties going in blindly and bargaining for a position of fairness to both sides.
The common law arose out of barons and local lords having the power to create their own dispute resolution
system. And perhaps this is an appropriate modern-day analogy: companies have their own little fiefs in which they
can arrange how they want to resolve disputes.
Doctrinally, the courts determine a system is fair by considering if the parties have a reasonable opportunity to
have their substantive grievance addressed effectively may vindicate his or her statutory cause of action. They
are not using a veil of ignorance standard.
What about a coin toss? Unlikely that the court would accept this as a reasonable system. They are probably looking
for a template, a shadow or image, of the established judicial system. An inquiry into facts, a right to present your
case, a rendering of judgment, etc. The bells and whistles arent as critical (e.g. number of depositions, statute of
limitations, damages). But there must be some kind of right to be heard, etc.

Review/Assessment of the Adjudicatory System

Lawyers can get pre-approved, by their clients, to carry out settlement discussions on their behalf. Then only the
final figure has to be agreed to by the plaintiff. The other way to do it, is to consult your plaintiff at each stage, at
each offer.
But by having lawyers take over settlement discussion and being pre-approved, there is an absence of plaintiff
participation and involvement. Which may lead to a loss of agency, control, and thus satisfaction with the process.

In Buffalo Creek, there was also a blending effect. All the individual claims are merged into one. So the individual
plaintiffs lose some of their own distinction, and their claims are somehow lessened? Reduced? Trivialized? Those
who deserve more, wont get as much as they should. And those who deserve less, will get more than they should.
There is no give and take, no back and forth, between Stern and the plaintiffs.
And there are separate groups even within that class: those with the greatest claims and those with the least. Their
interests in a sense, are opposed. By joining them together, those with the largest claims will not get all the money
that they are owed. And those with the smallest will get more.
Without a trial and judgment, is there a moral judgment? A societal judgment? The expressive function of litigation,
the expressive function of judgment.
Why does Stern sue anyway? Is it really just to expose Pittston? Or is it just to compensate the injured parties?
In Buffalo Creek, it seems like compensation was primary.
Fiss argues that adjudication should be about more than just compensation. The public service of adjudication is
meant to give force to the values in authoritative documents. Embedded in this, is the idea that perhaps we should
force people to judgment. Fiss resists this, but it does seem to be the end result.
Buffalo Creek illustrates the contrast between the two philosophies of adjudication. Stern writes the book as a way
to achieve justice. But does it really? Isnt it really about compensation?
Points in Fiss article and Buffalo Creek:
1. parties have less control over settlement than their lawyers really do. Particularly problematic
in groups.
2. Continual judicial involvement in the case. Absent in BC.
3. An imbalance of power in settlement.
4. What do we lose when we privatize the adjudicatory system?
In having less formal proceedings, we can render similar results at lower costs.
Prof. Tyler: there is debate about whether ADR really is faster and cheaper, more efficient.
But ADR does seem to produce greater client satisfaction. It is also beneficial in situations where the parties have
ongoing legal relationships with each other. It keeps the relationship less adversarial.
And the problem is, you cant force people to go to adjudication. And when they do go, you cant force them to go
to trial and not to settle.
Adjudication is a dispute-resolution system. It is also where we develop norms and ideals. Where a public official
gives meaning to the values embedded in authoritative texts, the Constitution, in society(?)

Glannon Why The Haves Always Win

One Shotters (OS) v. Repeat Players (RP)
If Glannon is right, we should be mostly concerned about situations where OS go up against RP, or RP go after OS.
Glannon says RP can do 3 things that are tremendously helpful to them:
1. lobby for rule changes in their favor. To the legislature. They have the institutional resources to do so. And
they are also accepted as experts, because they are RP they have a lot of experience with the rules,
theyre in court often.
2. game the system. For legal decisions and principles. They appeal cases, try to get legal precedent to go
their way, etc.
3. opt out. RP know the system, and can write the rules and contracts, including those for ADR. They can
dodge the bullet.
To counter the influence of RP:
1. form larger group of OS.
a. The total contingent fee is sufficient to make it worth the lawyers while to represent them. As
opposed to situations where the contingent fee for just one case is not enough.
b. Power as a group. Popular perception and weight, public opinion. (benefit to defendant is that all
the claims and issues can be settled at once)
2. hire a lawyer, a RP-for-hire. An advocate, a counselor. A defender. In Buff. Creek, this was a little different,
because Arnold & Porter had never brought a personal injury claim before.
a. This has limitations though. Because a lawyer has multiple clients. He has to represent each one
zealously, and cannot make trade-offs between them. Cannot game the system for legal decisions
or principles. (although certain lawyers do. Lawyers who want to change legal precedent engage
in judge shopping, forum shopping. Furthermore they also choose what cases to take. This refers
more to public interest lawyers)

b.

3.
4.

Lawyers, RPs, sometimes game the system (see above). But they also lobby for rule changes
more often, e.g. trial lawyers.
Interest of the have nots. Fighting for a cause. How would this apply to them having institutional
advantages? The lawyers choose the cause? Lawyers who are zealous for the cause, will try to play it to
get a rule with broader implications.
Certain procedural rules benefit the OS. E.g. low pleading burden. Levels the playing field a little. Non
mutual offensive issue preclusion. They can seize a judgment from a different case and applies it to theirs.
Open discovery helps too. Gets all the information out there, takes less resources, no surprises. Jury. Jury is
more sympathetic, can identify more with the OS.

How do we balance it out? The RPs seem to have some distinct advantages in terms of resources, etc. But the OS
have their own advantages too. Who wins?
There are countervailing pressures even in the supposed RP strongholds. They can lobby for rule changes, but the
legislature also needs to bear in mind public opinion. And the jurys opinion too. The jury can be persuaded by a
good fact pattern (the judge too).

Tom Tyler Social Science Perspective on Civil Procedure Reform

His work began out of the problems that judges had with compliance their orders were not being obeyed. There
are compliance problems 30-40% of the time in small claims court.
Also broad suggestions of dissatisfaction with the courts. Dissatisfaction and distrust.
From the perspective of a psychologist
Maybe dissatisfaction is inevitable, sheer nature of dispute.
If so, then we have to threaten or use force to get compliance. This is costly and hard to work: external compulsion
must be regular and predictable. But only 5% of the variance in compliance with drug laws can be explained by
risk/severity of punishment.
Preferable to get voluntary compliance, people to buy in to the system. Hope that people continue to comply with
the order in the long run. Also helps to mend relationship among the parties.
To solve problem: What do people really want? And what shapes acceptance in mediation?
Research findings indicate that process matters most. Fair outcome is next. And winning is the least important.
Process is especially important in evaluating third parties: lawyers, judges, etc.
Chicago traffic court example. People who went to court got their case dismissed. They won. But satisfaction was
low because they didnt get to present their case.
Postulation is that one of the major aims is to resolve conflicts in such a way as to bind up wounds and unify/heal
society. If so, then a process that is fair and makes people happy/increases satisfaction, is important.
A bottom line rationale is that courts cost money.
Process issues are especially important when:
correct outcome is unclear. People do not have a reference point.
expectations are high - divorce
a fair outcome is unattainable. Police conduct review (83% dissatisfaction in Chicago), rape cases (he said, she
said).
Mediation is more successful in terms of satisfaction. Irony though, is that it is not cheaper.
Norman Fiss, from Yale Law, feels that subjective justice is not what we should be going after. People dont
necessarily know their rights or see why a formal trial is good for them.
Feminists and critical theorists argue that the weaker party (women) can be hurt in mediation pressure to
compromise instead of asserting your rights. Mediation is also only possible/effective when compromise is possible.
When either side is unwilling to do so, its effectiveness is hampered.
What is procedural justice?
Key factors:
participation/voice
trustworthiness
quality of interpersonal treatment
quality of decision-making

fair procedure cuts across diversity. Ppl from diverse backgrounds all believe in and agree in terms of their desire for
fair procedure and how important they view it.
Post-Lecture Discussion
In mediation, the mediator does not say who is right or wrong. The goal is to get consensus, conciliation.
It also depends on what or how we view adjudication is it just a dispute resolution method, or is it a generator and
reinforcer of norms?
If we just allowed the parties to represent themselves and tell their stories, they may not accurately represent the
law.
Mediation occurs often when the parties have an ongoing relationship with each other. It helps to preserve some
harmony.
Why do non-governmentally backed mediation attempts fail? Something to do with societal norms perhaps?
Disparity in bargaining power can affect mediation. A disadvantaged, weak, poor, litigant, will not be in as strong a
bargaining position.
What is the role of the court? Is it just to enhance psychological satisfaction? It does so in order to enforce its own
legitimacy and gain more voluntary compliance. Well, no. It does mediation now just to get rid of cases.

LANGBEIN The German Advantage in Civil Procedure

Judge does the fact-finding.
Examination of witnesses mostly done by the judge. Judge summarizes witness testimony, not transcribed
verbatim. Economical vs. the U.S. system which records everything. Witness usually interviewed only once.
Admissibility in the U.S. system becomes credibility. Broad rules of evidence, but judge gets to decide credibility of
it.
Court selects experts. In U.S., experts are strongly swayed to be biased, hence opposing experts. Not as objective
as wed like to think.
Counsel can make suggestions as to fact-finding or legal theories.
German courts dont separate pre-trial and trial. Court investigates dispute in way most likely to narrow the inquiry,
get the jugular. Thus court can go back and forth between trial and discovery, as the case unfolds.
Less tension, theatrics. Encourages settlement.
Court promotes compromise
Loser pays discourages frivolous lawsuits and encourages settlement.
Lawyer does not get to speak to witness out of court less manipulation, coaching, etc.
Langbeins chief point: not that its not adversarial. But less manipulation of evidence through coached witnesses
and biased experts.
German system has:
Equality of representation
Prejudgment is held off by the input and contributions of the opposing lawyers.
Investigation is more focused, precise, conducted more efficiently.
Judges are specially trained, professional judges who go to judge school.
Judges specialize in the types of cases they hear.
Separation from the business of litigation less bias?