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Overview Res Judicata Issue Preclusion Persons Bound by Judgement Overview of Civil Procedure: Substantive rules of decision are the standards by which society controls and effects primary decisions respecting human conduct; legal rights and duties in everyday conduct Procedural law: treats the rules and principles that regulate how much substantive rules of decision are enforced in civil courts; sets out the rules for enforcing substantive rights in the courts Characteristics of Civil Procedure: o Adversarial Method: parties initiate and propel litigation in this model, and the judge, historically and at least in theory, plays a relatively passive role of umpire Burden is on the parties to present their grievances and defenses; heavy responsibility on lawyers for assuring justice and mastering Civil Procedure Vs. inquisitorial models of dispute resolution in which the judge drives the process Vs. German system: judge is the director--more vocal and dominant--judge finds out the law, interrogates witnesses, while attorneys ask supplemental questions, while in the American system, the judge is an umpire o Positive law: codified rules enacted by legislatures or their delegates Vs. common law: almost entirely judicial opinions with the question asking what rule best fits the case? It is declared, applied, and sometimes modified by judges in judicial opinions o FRCP Rule 1: to secure the just, speedy, and inexpensive determination of every action and proceeding Why have rules of Civil Procedure? o Promote efficiency: to ensure timely case management; as quickly as possible o Ensure consistency: uniform set of rules; ensure same standard Promote justice (for each litigant)/ fairness/ apply equally to everyone Sources of Civil Procedure: o Constitution (limits the subject matter of cases that federal courts may hear, determines the effect courts of one state must give the judgments of another, preserves the right to jury trial in certain categories of cases in federal courts, DPC of the 5 th Amendment guarantees some minimum level of process to litigants in federal courts (like 14 th to states)). o Statutes: federal and state statutes define the power of various courts to hear particular cases and convenient forums for litigation, and in all states, statutes also defined the personal jurisdiction of state courts o Federal Rules of Civil Procedure: federal courts and most states have adopted them. The Rules Enabling Act delegates authority to the Supreme Court to make rules governing general rules of practice and procedure for cases in the federal courts, the Court created the Judicial Conference Rules Committee that creates the rules and sends them up to Congressional approval. Band's Refuse v. Fair Lawn (Superior Court of NJ, Appellate Division, 1960) : A judge may take an active part in the trial of a case, but this power must be exercised with the greatest restraint, not only maintaining impartiality, but the appearance of impartiality. Judges have limited powers to unilaterally make motions or question witnesses. Judges can't have obvious slants or advocate openly for one side. FACTS: The Borough of Fair Lawn adopted an ordinance which required a permit to collect garbage and provided that only a person who held a contract with the town would be granted a permit. Capassos awarded the contract. Band did not have one, but had a contract to collect from a Plant, so they applied and were rejected. No longer able to collect trash. Band filed a complaint alleging that the ordinance was arbitrary, discriminatory, unconstitutional, and ultra vires ("acting beyond one's legal power"), suing the Borough. City denied and the Capassos intervened. Band filed an amended complaint which added a
count of alleging that the Fair Lawn-Capasso contract was not the result of open competitive bidding but of secret agreements and understandings which tainted the bidding with fraud. Ds filed answers denying fraud and claiming compliance with bidding statutes. Meanwhile, a grand jury investigation into garbage collection contracts in the county disclosed allegations of improprieties in the bidding for the Fair Lawn contract and led to indictments of numerous Fair Lawn officials. JUDGE'S BEHAVIOR: Extraordinarily active role of the judge: he called 27 out of the 32 witnesses in the trial (problem was not that the judge called witnesses, because they can, but the AMOUNT); devoted much time in preparing for the questioning of witnesses and the offering of exhibits; appointed amicus curiae because he felt he was "faced with a grave situation testing its ability and will to use its powers, if necessary, to prevent fraud, preserve justice, and protect the public interest"; examined and cross- examined witnesses at length; 24 of the witnesses had not been named in the interrogatories, so counsel for Capassos had no notice of the identity of these witnesses and no opportunity to conduct adequate pretrial investigation; added new issues; ruled on the admissibility of his own questions and evidence; and essentially threatened to rule against Band's before the trial even started if Band's dropped the allegations of impropriety of the bidding process HOLDING: The judge took two active of a role in conducting the litigation, stepping over the line of judge into advocate (for Band). The judge's role was improper and the trial court committed prejudicial error. Kothe v. Smith (US Court of Appeals, 2nd Cir. 1985) : FRCP R.16 was not designed as a means for clubbing the parties into an involuntary compromise. Although subsection (c) (7), added in the 1983 amendments of the Rule, was designed to encourage pretrial settlement discussions, it was not its purpose to impose settlement negotiations on unwilling litigants. Judges can advocate for settlements, but cannot compel them to be made, nor can they punish people for failing to make them. A judge may not penalize a party for failing to settle a case within a pre-determined period. Judges cannot outrightly coerce a settlement. FACTS: Medical malpractice case. During pretrial conference, the judge made it clear that he expected the parties to conduct serious settlement negotiations and recommended a settlement number, and warned the parties that if they settled for a comparable figure after the trial had begun, he would impose sanctions against the dilatory party. The case was settled for a comparable figure after one day of trial. The Court imposed sanctions against the D doctor (court said they were determined to get the attention of the carriers and that carriers are going to have to wake up when a judge tells them that they want to settle a case and they don't want to settle it). HOLDING: These actions were an abuse of the sanction power given to the court under FRCP R.16. Although the law favors the voluntary settlement of civil suits, it does not sanction efforts by trial judges to affect settlements through coercion. R.16was not designed as a means for clubbing the parties into an involuntary compromise, but was designed to encourage pretrial settlement discussion; not its purpose to impose settlement negotiations on unwilling litigants. The goal is efficiency; the legal system is clogged up and settling helps this; why waste the time if the case is likely to settle; why use precious resources in a trial in a case that is going to settle. Especially troublesome because the court imposed sanctions on Smith alone; offers to settle include conferences, informal discussions, offers, counter demands, more discussion, haggling, and finally a compromise, describing a two way street and a defendant should not be expected to bid against himself. Smith's attorney should not be condemned for changing his evaluation of the case after listening to Kothe's testimony during the first day of trial as the personalities of the parties and their witnesses play an important role in litigation. It it's not unusual for a defendant to change his perception of a case based on the plaintiff's performance on the witness stand. [One thing to believe something about your case and another to know you can prove it to a jury. Not in bad faith to see how trial goes to see how it will be valued after.] Note Case: Shedden v. Wal-Mart : Walmart asserted a no settlement litigation policy, which was communicated by a Walmart store manager. This would require the court to expend substantial judicial time and resources in a trial which might have been avoided if Walmart had been willing to engage in meaningful settlement negotiations, so the court finds that it would be just to require the attendance at trial of Walmart general counsel or some other Walmart corporate officer with litigation policy authority. The Court recognizes that parties have a right to refused to offer any money for settlement, however, in the court's view, an across the board policy of
refusing to negotiate frustrates both the letter and spirit of the FRCP, which encourages good faith settlement efforts in order to preserve scarce judicial resources. The court is simply requiring Walmart general counsel or other responsible corporate officer to be present at the trial in order to have a first-hand observation of the effect of the company's policy on both the court and in the particular case. Note Case: Koehn v. Tobias: settlement conference where P rejected D's offer. A year later, new counsel for D proposed a settlement in the range of $150,000. P said She would go to a settlement conference. When they got there, Ds renewed their earlier offer, which was less than half mentioned by the new lawyer. P again rejected, and The judge ordered D to pay P in attorney fees and costs to prepare for the settlement. COA affirmed, finding the conference would have been called off had the mistake been corrected before. Describing and Defining the Dispute Pleading: CL Pleading: Complicated and arduous process—cases were often lost or won based on pleading skills of attorneys. The American Reform Experience: rules were more flexible and technical mistakes did not immediately mean the case is lost; attempt to move away from pure formalism and to decide cases on merits o The FRCP abolished fact pleading in favor of what was originally called notice pleading--with the function of giving notice to the opposing party A pleading: a document--called the complaint, the answer, and, where permitted, the reply--containing statements (allegations or averments) or denials of facts, as well as statements of claims or defenses o Found in FRCP R.7 Basics: o The pleadings process includes the filing of pleadings and responses to them o First, the pleading can give notice to the parties of the nature of claims and defenses, helping them prepare their case o Second, pleading can help a court identify and weed out sham or insufficient claims or defenses, conserving judicial resources and protecting litigants against harassing litigation o Third, pleading can help narrow the issues to streamline a case for trial and focus the attention of the decision makers o Fourth, pleading can guide the parties and the court in the conduct of the case, helping them to define the scope of pretrial factual preparation and of evidentiary relevance at trial o Finally, pleading can supply a record for judgment, permitting the eventual application of the law of res judicata to preclude litigation of already-decided claims and issues Terminology: o Complaint: A plaintiff starts a civil action by filing a pleading called a complaint. A complaint must state all of the plaintiff's claims against the defendant, and must also specify what remedy the plaintiff wants. After receiving the complaint, the defendant must respond with an answer. o Demurrer: a legal way of rejecting a claim without addressing the factual allegations contained within it. To demur to a civil lawsuit, a defendant essentially argues that even if the allegations are true, there is no legitimate legal claim PLEADING FACTS VS. CONCLUSIONS Gillispie v. Goodyear Service Stores (Supreme Court of NC, 1963): In order to properly state a cause of action, a pleading must allege facts, not merely legal conclusions. A complaint requires moderate detail as to "what [event] occurred, when it occurred, where it occurred, who did what," and how all of that comes together to sustain a case in court. If a complaint lacks such information, it can be subject to a demurrer. [This requirement has since been expanded by Twiqbal]. FACTS: Gillispie brought suit against Goodyear alleging the following in the complaint: "the defendants...maliciously came upon and trespassed upon the premises occupied by the plaintiff as a residence, and by the use of harsh and threatening language and physical force directed against the plaintiff assaulted the plaintiff and placed her in great fear, and humiliated and embarrassed her by
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