Weekly Review 1 Civpro

Front 1

12 Litigation Steps

Back 1

1. An event or transaction that gives rise to potential litigation
2. Gathers the facts, investigates and research
3. Initiate the suit
4. D responds
5. Motions for “judgment on the pleadings”
6. Discovery
7. Motion for Summary Judgment
8. Final Pretrial Conference
9. Trial
10. Entry of judgment
11. “Post-Judgment motions”
12. Appeal or “execute” on the judgment

Front 2

Different Types of Facts to Investigate

Back 2

liability, remedies, procedure (jurisdiction, etc.)

Front 3

FRCP for Fact Gathering, Investigation

Back 3

FRCP 11

Front 4

FRCP for lawsuit initiation

Back 4

FRCP 3-5 & 7-11

Front 5

FRCP for D response

Back 5

FRCP 5, 7-12, 55

Front 6

Three options for how D can respond

Back 6

1. File a pre-answer motion (FRCP 12) by Challenging jurisdiction, cause of action, etc
2. Answer (FRCP 12, 13)(Generally, if pre-answer motion doesn't work)with affirmative defense - Counterclaims and/or Cross-claims – [Keep this in mind, can D come back and fire at you?]
3. Do nothing.

Front 7

FRCP for Motions for “judgment on the pleadings”

Back 7

FRCP 12(c) 1-5

Front 8

What is Motions for “judgment on the pleadings”?

Back 8

If still early enough not to delay the trial, a party may move for judgment on the pleadings

Front 9

FRCP for Discovery

Back 9

FRCP 26-37, 45

Front 10

Types of Discovery

Back 10

o Interrogatories
o Depositions
o Medical and physical exams

Front 11

FRCP for Motion for Summary Judgment

Back 11

FRCP 56

Front 12

Scope of Motion for Summary Judgment

Back 12

Doesn’t have to be all or nothing and it doesn’t resolve everything

Front 13

FRCP for Final Pretrial Conference

Back 13

FRCP 16

Front 14

Do you have to have the trial scripted at the stage of Final Pretrial Conference?

Back 14

Yes

Front 15

FRCP for Trial

Back 15

FRCP 50-52

Front 16

What steps are taken during a trial to make a decision?

Back 16

o Motion for judgment as a matter of law
o Jury instructions
o Verdict

Front 17

FRCP for Entry of judgment

Back 17

FRCP 58

Front 18

FRCP for Post-Judgment motions

Back 18

FRCP 59-60

Front 19

A proper judge's role

Back 19

To be the referee of the case by managing, scheduling, planning, give guidance to both parties

Front 20

6 Conditions for moral force of a judgment be at maximum

Back 20

1. The judge doesn’t act on his own initiative
2. The judge has no direct or indirect interest (even emotional) in the outcome of the case
3. The judge confines his decision to the controversy bf him and attempts no regulation of the parties’ relations
4. The case presented to the judge involves an existing controversy, and not merely the prospect of some future disagreement
5. The judge decides the case solely on the basis of the evidence and arguments presented to him by the parties
6. Each disputant is given ample opportunity to present his case

Front 21

Three things a judge can do independently but not all together.

Back 21

1. bring out new issues and bring in witness
2. deny giving more time to do things
3. Appoint a lawyer to do things

Front 22

FRCP in Judge's Role

Back 22

FRCP 16

Front 23

Available Arguments that may justify a judge sanctioning for parties not settling. (FRCP)

Back 23

1. Rule 16(c)Trying to save the court’s money and time
2. A judge asked to settle in good faith, during a set meeting using courts time, they met, and didn't use the time wisely, therefore wasted court's time.

Front 24

Applicable FRCP and its approach to matters historically addressed through NUMEROUS FORMS OF ACTION (writs)

Back 24

Rule 2: One form of action. [There is one form of action – the civil action]

Front 25

Applicable FRCP and its approach to matters historically addressed through THE DECLARATION

Back 25

Rule 3: The complaint

Front 26

Applicable FRCP and its approach to matters historically addressed through D's OPTION OF "PLEA IN BAR"

Back 26

Rule 12: Denying (it wasn’t me, not true) the complaint

Front 27

Applicable FRCP and its approach to matters historically addressed through D's OPTION OF "DILATORY PLEA"

Back 27

Rule 12(b)(1-5,7): Not answering the merits, there’s a procedural problem

Front 28

Applicable FRCP and its approach to matters historically addressed through D's OPTION OF "DEMURRER"

Back 28

Rules 12(b)(6), 12(c), 7(c): No remedy to the action. “So what”. 7(c) says there are no more demurrer.

Front 29

How did English Common Procedure zero-in on a issue?

Back 29

Pleadings after pleading, under English Common Law Pleading, of using pleading to narrow the issues.

Front 30

How do we narrow down in issues now? (Applicable FRCP)

Back 30

Rule 8(a): Prof thinks this falls pretty short. We don’t get that case fact searching opportunity like English Common Law Pleading. Instead of this back and forth, you do discovery. (FRCP 16)

Front 31

What's the difference btw English Common Law demurrer and current way (Applicable FRCP)

Back 31

Rule 12(b)(6) The motion to dismiss : Equivalent of Demurrer. Now, even if your motion is dismissed, you get to move away from that central focus and bring up other defenses later, whereas in English court, you get no chance to prove with evidence, and when central focus is found, they’re done, they don't get the discovery phase.

Front 32

What's the difference in pressure on P to plead the right case btw English Common Law and FRCP?

Back 32

English Common:P has to come up with the right writ, so it’s a lot of pressure.

FRCP:
1. There’s only one form of action (FRCP12)
2. P may plead several causes of action in the alternative, FRCP 8(e)(1)
3. P may seek several forms of relief in 8(d)(2) – you don’t have to pick one.
4. Rule 15, we can amend the fight you picked.
SO LESS PRESSURE

Hint 32

FRCP has 4 reasons

Front 33

What's the difference in how English Common Law views pleadings and how FRCP does?

Back 33

ECL: Pleading as central focus to reach its merits.

FRCP: Rule 8, talks about its just a document that contains three elements and de-emphasized in 8(f).

Front 34

In contrast to ECL of using pleadings to narrow issues and reach it's merits, how does the FRCP way reach it's merits?

Back 34

Rule 1 “second sentence” Just, speedy… We want to resolve cases on merits, by not having to worry about the technical rules, that English Common Law relied on.

Front 35

Three purposes of Pleading

Back 35

1. Notice of D of allegations
2. Notice to court of allegations
3. Permit an Early Decision on the Merits (Is there a right to relief? Can law be applied to this situation?)

Front 36

How do we frame pleading rules that –
Permit P to assert legitimate claims (despite limited info) AND
Protect defendants from illegitimate claims?

Back 36

Prior investigation, with a signature of the attorney, reasonable basis for the allegations. This Rule 11, puts a lot of pressure to the attorneys to be the gate keepers of true information.

Hint 36

3 elements and FRCP

Front 37

Why is it that they might NEED MORE info in a pleading? (You get a summons and complaint saying that; “Sometime earlier, you were driving in excess speed limit.” How would you respond to it? [You would ask for more information.] Why?)

Back 37

1. Tactical Reasons: So you know how to respond.
2. Legitimate Reasons: To find something that will give them off the hook, or something “they can be held liable” so it won’t be strict liability. Find defenses in the text. (For Harbor, in the foot note, it says OR act of god, so this way, D could find this as an defense if it’s in the C.

Front 38

Why it’s okay to not have that much info in pleading a case

Back 38

Because you CAN find out what happened in that 5 months and Sometimes, parties don’t have that information so you have to open the court to them, but you can’t open to frivolous claims.

Front 39

Positive consequences of alternative pleadings (6)

Back 39

1. P doesn’t have to file two or more separate pleadings (Can use one set of facts for two+)
2. Avoids risk of inconsistent results: bar owner winning a case against him by blaming the truck driver, vice versa.
3. Saves the court effort of trying the same matters twice
4. By suing two parties at once, there is more likelihood that each D will help P make out a case against the other
5. Allow a party to have options in the case
6. Come in handy for product liability case: Sue the manufacture, company who sold it, the owner, etc bc you don’t know who was at fault for that faulty product

Front 40

Negative consequences of alternative pleadings (2)

Back 40

1. Cases like this (inconsistent) will arise and will be confusing to the jury when trying to figure out who should recover under what count.
2. Inconsistent pleadings is a sign of uncertainty, which makes a case weaker

Front 41

When can you say an alternative pleading's rights are abused?

Back 41

When P knows the truth about something, but goes ahead and brings up an alternative.

Front 42

What can a court/person do if the person making allegations was not “there” at the time things happened?

Back 42

They can make allegations on “information and belief”

Front 43

What has been 2 significant amendments to Rule 11?

Back 43

1. 1983 – Too much sanctioning and deterred lawyers from going to court.

2. 1993 – Made the imposition of sanctions discretionary, and reoriented the choice of sanctions towards deterrence and away from compensation. This amendment sort of reduced the “safe harbor” – do whatever you want, and when you get filed with a motion, get out of the case and you’ll be fine principal.

Front 44

What is an affect of too much sanctioning under Rule 11?

Back 44

Deter lawyers from making appropriate and legitimate claim

Front 45

What is an affect of little sanctioning under Rule 11?

Back 45

Lawyers start making improper submissions hoping that no one will notice.

Front 46

What justifies the contradictions between requiring hard facts under Rule 11 and need for discovery?

Back 46

If you could have found out relatively easily without the process of discovery, you should have!

Also, don’t sue on a ‘lost cause’ evidence, like something you and everyone should know that you will never find.

Front 47

Steps necessary under FRCP 11 for a defendant to obtain an imposition of sanctions against a plaintiff

Back 47

1. Find a cause of sanction because the material violated what’s outlined in Rule 11(b)(1-4)
2. File a motion for sanction (You give the motion to D, like a “warning”, then after 21 days, it goes to file. So this will give P time to think about it.)

Front 48

Steps necessary under FRCP 11 for a federal trial court judge to impose sanctions against a plaintiff

Back 48

1. Find a cause of sanction because the material violated what’s outlined in Rule 11(b)(1-4)
2. Enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) respect thereto

Front 49

When can Rule 11 be applied during the trial steps?

Back 49

Rule 11 can apply during any stage of the pleading stage, other papers, representation to court – by the court or the opposing party. Pretty much whenever, with few exceptions.

Front 50

Where can you find obligations FRCP imposes upon a lawyer preparing a pleading?

Back 50

Rule 11(b)(1-4)

Front 51

What does the court say in submitting a insufficient pleading due to statute of limitations?

Back 51

Rule 11 says it’s okay, it’s understandable