Welcome to Civil Procedure

What is Civil Procedure?

 Civil procedure refers to the body of rules, statutes, and doctrines that govern where and how
civil (aka non-criminal) suits are initiated, litigated, and resolved by litigants, their attorneys, and
the courts.
 It addresses questions like:
o What laws apply to the suit?
o Where may I file suit against a particular person?
o How can I get information from my adversary in this case, if at all?
 Legal analysis consists of both the ability to understand the principles and doctrines that flow
from various legal sources and the ability to apply those principles to future cases.
 The purpose of taking civil procedure is for you to appreciate the full range of procedural issues
that must be addressed when you must pursue or defend against a lawsuit
o For example, at the end of this course, you should be able to figure out whether a court
is a proper one in which a case may be brought, whether the court can and should enter
summary judgment for a particular party, and whether and how you can challenge a
determination made by the judge or the jury in a case

Introduction to U.S. Judicial Systems

 Obviously, the US federal government has three branches:

o Legislative (Congress)
o Executive (the President)
o Judicial (the Supreme Court and inferior federal courts)
 Our concern here is the federal judiciary
o Which for the most part derives its existence and authority from Article III of the US
Constitution and from legislation and rules enacted by the other two branches
 Federal District Courts
o The federal judicial system consists of a hierarchical group of courts divided based on
geography and jurisdiction
o The main entry points into the system are the US district courts, which serve as trial
courts where most cases are filed initially
o There are 94 federal judicial districts covering each of the states, D.C., and US territories
o Every state had at least one federal judicial district
 Several have more than one
o It is worth noting though that no district crosses state lines or covers multiple states
o Within these districts where can be multiple judges who may be located in different
courthouses spread throughout the district, in various “divisions” of the district

U.S. Courts of Appeals

 Appeals from the federal district courts are heard by various U.S. Courts of Appeals that are
organized into geographical regions called “circuits”
  There are 12 regional circuits and one subject-matter-oriented circuit referred to as the U.S.
Court of Appeals for the Federal Circuit
o This is located in D.C. and primarily hears appeals related to international trade, patents
and trademarks, veterans’ benefits, government contracts, and claims against the U.S
 The regional circuits covering the states and U.S. territories are numbered 1 through 11
o D.C. however has it’s own circuit called the U.S. Court of Appeals for the D.C. Circuit
 The circuit courts consist of multiple judges who hear appeals initially as three judge panels.
o Whereas federal district court judges typically handle cases on their own
 Appeals from district courts are presented and argued to the circuit courts both through written
briefs and through oral arguments before deciding the panel
 Under special circumstances, a party who loses before the panel may seek reconsideration by all
the active circuit judges sitting on that court
o Referred to as a rehearing en banc


o This is a map of the division of the U.S. into federal districts and circuits.
 Note that the U.S. Court of Appeals for the first circuit not only includes the
upper New England states, but also Puerto Rico and hears appeals from the
federal district court in that U.S. territory
 Similarly, the U.S. Court of Appeals for the third circuit hears appeals from the
federal district court located in the U.S. Virgin Islands

The Supreme Court of the United States

 The Supreme Court sits at the top of the U.S. judicial system.
  Cases decided by the circuit courts may be presented to the Supreme Court for review, but its
review of such cases is largely discretionary.
 Litigants seeking review submit a petition for certiorari to the Supreme Court; if the Court
decides to take the case, it grants the petition
 The Supreme Court also has the authority to review the decisions of the court of last resort in
each of the states, D.C., Puerto Rico, and the U.S. Virgin Islands to the extent they involve issues
of federal law
o 28 U.S.C. § 1257
 Final judgments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court by writ of
certiorari where the validity of a treaty or statute of the United States is drawn
in question or where the validity of a statute of any State is drawn in question
on the ground of its being repugnant to the Constitution, treaties, or laws of the
United States, or where any title, right, privilege, or immunity is specially set up
or claimed under the Constitution or the treaties or statutes of, or any
commission held or authority exercised under, the United States.
o 28 U.S.C. § 1258
 Same as above but for Puerto Rico
o 28 U.S.C. § 1260
 Same as above but for the U.S. Virgin Islands
 Again, state courts are fully competent to hear most cases based on federal law, but litigants can
seek the review of the Supreme Court

State Judicial Systems

 The states, DC, and the territories all have their own systems of courts that are separate from
not only the federal system, but also each other.
 They are typically organized similarly to the federal courts
o There are trial courts, intermediate appellate courts, and a court/courts of last resort
o Some states do not have an intermediate appeals court
 Montana is an example
o State trial courts are courts of general jurisdiction that ordinarily may hear all types of
cases whether they are based on federal or state law
o However, states will also typically have specialized lower courts to hear a discrete
category of disputes such as those involving domestic relations, probate matters, or
small claims.
o These issues can also be heard by the US Supreme Court if successfully petitioned
 It is important though to remember that EU S Supreme Court has no jurisdiction
to review state court determinations on matters of state law

The Federal Rulemaking Process

 The rules and doctrines governing civil practice before the federal courts come from many
different sources such as
o constitutional provisions
 o federal statutes
o and a special set of rules called the Federal Rules of Civil Procedure
 This body of law and the judicial opinions interpreting it make up most of what we refer to as
Civil Procedure
 So, what are these federal rules of Civil Procedure and where do they come from?
o The federal rules of Civil Procedure were adopted in 1938
 they were drafted by a special committee comprised of judges, practitioners,
and law professors appointed to the task
 these rules are regularly revised today in a process that Congress established in
the Rules Enabling Act, 28 U.S.C. 2071-2077
o The process goes
 A consideration of the proposed rule change by the advisory committee on civil
rules
 after hearings and receiving comments on the proposed amendment, the
advisory committee may approve certain changes and recommend their
adoption to the Committee on Rules of Practice and Procedure of the Judicial
Conference, which is commonly referred to as the Standing Committee.
 If the staining committee approves the changes, it recommends their approval
to the judicial conference
 which then may accept or reject the amendments
 Then those amendments adopted by the judicial conference are sent to EU S
Supreme Court
 if the court approves it transmits the changes to Congress by May 1st of
the year in which the amendments are to take effect
 Congress then has seven months to reject the changes
 if it fails to do so the amendment becomes effective on December 1st of
that year
 Why do you think Congress established this system for making and amending
the federal rules?
 A lengthy process ensures that many different people see and approve
the change

An Outline of a Civil Action



 This chart shows a broad linear overview of the course of a civil action in the federal system
 Selecting a proper court
o When an aggrieved person wants to pursue legal action against someone else, that
person must initially decide where they may file their lawsuit
o the prospective plaintiff must decide between state and federal court, and then among
those courts they must determine geographically where to file suit meaning for example
which state to file in
o this is not simply a strategic choice that they can make freely
o but instead, there are statutes rules and legal doctrines that limit the authority of
various courts to educate disputes of a certain kind or to render judgments that will
bind certain individuals
o court’s jurisdiction
 a court’s jurisdiction refers to these limitations on the adjudicatory authority of
courts
o There are two aspects of jurisdiction that we will consider
 personal jurisdiction
 subject matter jurisdiction
 providing proper notice of a lawsuit is also an aspect of establishing a court's
jurisdiction
o selecting a proper court entails identifying courts that are a proper venue under
applicable statutes
 Personal Jurisdiction
o Personal jurisdiction addresses the authority of a court to exercise power over an
individual or entity and adjudicate their rights
o for example
 if I am from Florida and I I'm in a car accident in Georgia with someone from
Alabama, could the Georgia court exercise personal jurisdiction over me?
o These questions are important because when a court lacks personal jurisdiction over a
party any resulting judgment enters against that party will not be binding or enforceable
 o This is why it is important when choosing where to file a lawsuit for litigants and their
attorneys to identify those courts that would be able to exercise personal jurisdiction
over each of the defendants in the action
 Notice
o before a court may exercise jurisdiction over defendant that person or entity must have
been properly notified of the action
o the due process clauses of the 5th and 14th amendments to US Constitution are the
sources of the constitutional notice requirement, while rule four of the federal rules of
Civil Procedure sets forth the details regarding how parties may be notified actions
brought against them in federal courts
 Subject Matter Jurisdiction
o Courts also must have competency to hear case
 this means that they must be authorized to adjudicate disputes of a particular
kind before they may entertain them
 Subject matter jurisdiction rules address this issue
o federal courts are empowered to hear and resolve only certain limited types of cases
 this means that not all disputes may be brought in the federal courts
 Venue
o there are also rules of convenience that further determine the proper court that may
hear a case within a judicial system
o for example
 these venue rules resolve questions such as whether a case may be brought in
the Southern District of Texas, or the central District of California, or both, or
neither
o venue rules focus on the location of the parties and the events that caused the dispute
to identify those judicial districts in which the action may be pursued conveniently
 Applicable Law
o we will also consider what law should apply to the issues that are raised in the dispute
o there are two aspects to this question
 whether state or federal law should apply
 if state law applies, which state’s law applies
o For example
 When a federal court is adjudicating a dispute involving the alleged negligence
of the defendant, should the federal court apply a particular state law of
negligence or is there some federal law of negligence that the court should
apply
o these types of choices are addressed by what has come to be known as the Erie doctrine
 Pleading and Joinder
o Once a litigant has selected the proper court, they must file and serve a complaint to
initiate the action
 We will cover things such as what information needs to appear, how much
detail they need, if the plaintiff can amend their complaint
o Once served, the defendant may file an answer or may respond by raising any number
of special defenses or objections
  we will also cover what these defenses are and what information must be in the
defendant's answer
o related to the pleadings is the matter of how a lawsuit may be shaped with respect to
the claims and parties
 we will cover things like can multiple claims be addressed in a single lawsuit, can
a plaintiff sue multiple defendants at once, or if can non parties try to intervene
 Discovery
o after the lawsuit has been properly filed and shaped, the parties must eventually engage
in a process of information exchange
o this is called discovery
 this process is meant to give the parties access to all available relevant
information
 this is so they can build their respective cases
o the American system is designed to prevent litigates from being able to conceal
information that might be useful in a case
o however, the ability to discover information in the possession of one's adversary is not
limited list
 Trials and Disposition Without Trial
o After discovery has progressed the case may be preemptively concluded short of a trial
 this is through a negotiated settlement or through the entry of summary
judgment
 summary judgment is a judicial ruling that there is no genuine, material
factual dispute between the parties warranting a trial
 additionally a court may direct the parties into arbitration or some alternate
dispute resolution that can resolve the dispute without a trial
 also it is possible that a defendant will fail entirely to appear or defend itself in
an action which can result in the court having to enter a default judgment
o in the event that a case does proceed to trial
 one critical issue that will be our focus here is the role of the jury
 we will look at things like whether a jury rather than a judge may decide an
issue, the role of the jury, and rules surrounding the selection of jury members
 Judgments and Appeals
o Securing and Enforcing Judgments
 First is the matter of securing and anticipated judgment at the outset of a case
 At the other end of the process, once a party has obtained a final enforceable
judgment it must be executed at the prevailing party expects to obtain the relief
won
 Appellate Review
o Strict rules limit the point at which any given decision may be challenged before an
appellate tribunal
o So while a final judgment entered on a jury verdict may be appealable, a ruling by a trial
judge that certain documents must be produced during discovery typically may not be
appealed
o we will further review what can and cannot be appealed
 o the manner in which federal appeals courts exercise their reviewing authority is also
important
 Preclusion Doctrine
o Preclusion doctrine is the body of law that governs the extent to which previous
determinations of claims or issues preclude the relitigation of those matters or closely
related matters in subsequent lawsuits
 Recurring Themes
o When you confront a topic you should not only seek to understand how to apply the
rule to specific fact patterns
 you should also wonder how the topic fits within the larger context of a lawsuit
 ask yourself why a rule is written a certain way

Civil Procedure

 Civil
o Not criminal
 Procedure
 Not substance
 Not the merits of the case
 Merits are determined by weighing facts
 Any matter that is not criminal

Rules

 Which rules go to which court?

o Federal rules of civi pro go with fed courts
o State rules of civ pro go with state courts
o May be similar but do not have to be
o SC is in addition to all that are codified
 In default, it applies to every court, federal and state
 Who has the authority to make or change them?
o US SC
o The fed circuits have the authority to change/tweak/interpret for their circuit only
o State appellate courts (including state SC) can make/change rules for their states
 These rules are the engagement of “war”
o Less concerned with what you can and cannot do
o These rules themselves are more like weapons
o These rules are weapons to be deployed, not restrictions on behavior
 Utilize these, make the other side hurt
 Strategy is the key
 Weapons
o There is little that’s mandatory in the rules
o FRCP and New Deal
 Rules are meant to be simple so that anyone can access the court
 Came out of FDR in the 1930s, trying to get out of the Great Depression
  FDR’s lawyers wanted to simplify the procedures in federal court, state could no
longer set their own rules for federal court
 Simple words, fairly short
 We have veered away from this today
 If we leave them simple and open to interpretation, you leave room for lawyers
to interpret them and use them as weapons
o Adversarial System
 Lawyers do 99% of the work in lawsuits
 Judges do maybe 1%
 This is by design to make sure judges are not biased
 The lawyers are figuring out to take advantage of these rules
 They are given maximum scope to do what they want to do with
minimal restrictions
 Jurisdiction is a territorial phenomenon
 Florida is divided into three districts
o These are federal districts
 Every state has its own court system that is technically separate from each other
o The states own systems are separate from each other as well
o Each state has their own rules of civil procedure as well