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Civil Procedure
Professor Lonny Hoffman
Outline for the First Day
Today’s agenda:
1. What is this course about?
2. Why is procedure important?
3. Why is Civil Procedure hard and what can be done about it?
4. Misc. housekeeping
What is this course about? What will we cover?
Civil Procedure concerns the procedures that apply when civil lawsuits are filed
Substance v. Procedure Examples of Substantive Questions:
• Is an uninvited guest who intrudes on another’s land allowed to sue for injuries sustained there?
• What duties does a defendant owe to third-parties, like bystanders, to an accident?
• When is a handshake deal an enforceable contract?
• What damages are owed for a contract breach?
Examples of Procedural Questions:
• What does it take to file a lawsuit?
• Where can the plaintiff bring suit?
• What must the defendant do after they’ve been sued?
• Can the defendant ever try to stop the case from getting to trial?
What Civil Procedure Isn’t:
• Not administrative
• Not criminal procedure
• Mostly, not state procedure
Why is procedure so important?
“I’ll let you write the substance of a statute, and you let me write the procedure, and I’ll screw you every time.” -Rep. John D. Dingell, Jr.
“For what substantive law says should be means nothing except in terms of what procedure says that you can make real.”-Karl Llewellyn
Why is procedure so important?The theme of Access v. Efficiency
Why is Civil Procedure so hard? Visualization Challenges
Stages of a Civil Case
Pleading Stage Discovery StageSummary
Judgment Stage Trial Stage Appeal Stage
Plaintiff’s Complaint
Defendant’s Answer
Do we need a jury?
Fact gathering (with permission)
Only about 1% of filed federal civil cases make
it to trial
And only about 40% of cases that
are tried are appealed
Pleading Stage
Discovery Stage
Something bad
happens
Wrongdoer can’t be identified
Damages not enough
Wrongdoer has no money
Victim doesn’t know she has a right to sue
Victim not allowed to sue (e.g., arbitration or waiver clause)
Some Roadblocks to Suit:
Why is Civil Procedure so hard and what can be done about it?
Mock exam problems, written assignments, in-class role-playing and the teaching assistants
Lots of Practice Opportunities
Frequent written assignments
In-Class Role Play
Teaching Assistant/Prof
Feedback
MiscellaneousOffice Hours/Contact Information
Office Hours:Tuesdays and Thursdays, 5:00-6:00 pm(or call/email to schedule another time)
BLB 124(713) 743-5206
Assistant: Lillian [email protected]
(713) 743-2130
Civil Procedure
Professor Lonny Hoffman
Outline for the Second Day
Agenda:
1. Stages of a Civil Case?
2. Things Lawyers Think About Prior To Suit
a. Strategy: fact gathering and case building
b. Doctrinal considerations
Stages of a Civil Case
Pleading Stage Discovery StageSummary
Judgment Stage Trial Stage Appeal Stage
Plaintiff’s Complaint
Defendant’s Answer
Do we need a jury?
Fact gathering (with permission)
Pleading Stage Discovery StageSomething bad happens
Whom is to blame?
Is there evidence available to prove the case? If not, where is it and how can we get it?
Does that person/entity have money? or are they judgment-proof?
Some Things Lawyers Must Think About Before Suit
If I want to sue Dan Defendant, where can I do that?
One aspect to this question involves what we call personal jurisdiction,
or the jurisdiction of the court over the person (or non-natural legal
entity, like a corporation or partnership)
Other Things Lawyers Must Think About Before Suit
WWV Case
Personal Jurisdiction
Suit filed in Oklahoma state court
Robinsons v. Audi (based in Germany)VW of Amer.(MI/NJ)WWV (New York)Seaway (New York)
Seaway dealership
was in Massena,
NY
Massena NY
Creek County, OK
Beyond personal jurisdiction, you also have to sue in the proper venue
In state court, venue is usually county-by-county
Other Things Lawyers Must Think About Before Suit
In federal court, venue is by judicial districts
There are 254 counties in Texas
There are 94 judicial districts which are in 12 regional circuits
Finally, the third important consideration:Subject Matter Jurisdiction
In state court, SMJ is by subject matter and amount-in-controversy
Other Things Lawyers Must Think About Before Suit
$10,000 or less
Two most important sources:
Federal Question Jurisdiction
Subject Matter Jurisdiction- Federal Court
Diversity Jurisdiction
Plaintiff v. Defendant NY v. Tx
Pleading Stage Discovery Stage
Something bad
happens
Before suit, the plaintiff’s lawyer is first thinking about all of these issues:
From practical questions to strategic legal questions about PJ, venue and SMJ
Some Things Lawyers Must Think About Before Suit
Both before and after suit, defendant’s lawyer is also thinking about these same issues (as is the plaintiff’s lawyer)