I. Personal JurisdictionABSENT DEFENDANTRULESAn assertion of personal jurisdiction over a non-resident, absent defendant must be authorized by the federal and state long-arm statutes and must comport with the requirements of due process: The defendant must have minimum contacts with the state such that the assertion of jurisdiction does not offend traditional notions of fair play and substantial justice. (International Shoe) A court must be certain it has personal jurisdiction at the outset of a case. (Pennoyer) Personal jurisdiction generally is of constitutional import—it comes under the Due Process clause. (Pennoyer)

POLICYfairness: Courts are very concerned about the fairness of forcing a defendant to litigate in a foreign forum, so the primary issue with jurisdiction is ensuring that their rights are protected in the process.expansion of jurisdiction: Different rules and standards can create more or less jurisdiction over non-resident defendants. States have an interest in giving their citizens a convenient forum in which to resolve disputes with non-residents.

agent for service of process: The idea that nonresident defendants appointed an agent for service of process merely by entering the forum state was a legal fiction employed to enable personal jurisdiction over them before the minimum contacts standard existed. (Hess)federal long-arm statute: A federal court shares the jurisdictional limits of the state court of the state in which it is located. (FRCP 4k1A)100-mile bulge rule: Serving a summons establishes personal jurisdiction over a defendant who is joined under Rule 14 or 19 and is served not more than 100 miles from the court that issued the summons. (FRCP 4k1B)state long-arm statutes: A state long-arm statute determines which defendants the state may assert personal jurisdiction over.

catch-all statutes: Most states now have catch-all long-arm statutes that allow the assertion of personal jurisdiction to the full extent allowable by the Constitution, which means the personal jurisdiction inquiry will be a single due process analysis.

enumerated act statutes: Some states have enumerated act statutes, but these may exceed their Constitutional grasp. Even when an enumerated act statute authorizes jurisdiction, you must still make the second due process inquiry. Note: Be aware of the difference between jurisdiction premised on an injury occurring in-state caused out-of-state act and an in-state act causing in-state injury.POLICYjustice for citizens: State legislatures had an interest in expanding the personal jurisdiction of the courts to help obtain justice for their citizens who were harmed by out-of-staters.

general v. specific jurisdiction: The more contact a defendant has with the forum state, the more things they can be sued for there.

general jurisdiction: The defendant must have continuous and systematic contacts with the forum state. [i.e. some form of office there (Perkins); sales and promotion by independent, non-exclusive

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sales reps don’t count (Fisher); purchases occurring at regular intervals don’t count (Helicopteros)] If a state has general jurisdiction, the defendant can be sued there for anything.

specific jurisdiction: Specific jurisdiction arises when a defendant has only isolated or sporadic contact with the state. In such cases, the cause of action must “arise out of” or be “related to” the defendant’s contact with the forum state. (Helicopteros, Shaffer)

minimum contacts: For the assertion of personal jurisdiction to be proper, the defendant must have minimum contacts with the state. (International Shoe) The defendant must “purposefully avail himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” (Hanson) Key factors:

foreseeability: Foreseeability alone cannot confer jurisdiction. The defendant cannot be haled into court on the basis of random, fortuitous, or attenuated contacts (WW Volkswagen)

third-party acts: The unilateral act of a third-party—including the plaintiff—who claims some relationship with the defendant cannot create sufficient contacts to serve as the basis for personal jurisdiction. (WW Volkswagen, Hanson)

relationship to state residents: Where a defendant has deliberately engaged in significant activities in the state or created continuing obligations between himself and state residents, jurisdiction is proper. (Burger King)POLICYdemands of modernity: A new and more expansive understanding of personal jurisdiction because necessary as people became more mobile and meaningful geographical boundaries dissolved. Since people can now move about freely, states have an interest in exerting power over wrongdoers wherever they may originate from

stream of commerce: “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.” (Gray) Key factors:

customer: The stream of commerce ends with the customer, the unilateral act by the plaintiff of bringing the product into the forum state cannot confer jurisdiction. A seller of chattels does not “appoint the chattel his agent for service of process.” (WW Volkswagen)

component manufacturer: A state has personal jurisdiction over a component manufacturer whose product (as part of a finished product) gets to the forum state via the stream of commerce. (Gray)

Asahi: There’s a split of authority on what is required beyond the stream:

o O’Connor: This position says that personal jurisdiction requires the stream of commerce PLUS additional conduct: “intent or purpose to serve the market in the forum state, designing the product for the market, advertising, establishing channels for providing regular advice to customers, marketing the product through a distributor who has agreed to serve as the sales agent in the forum.”

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o Brennan: This position says that stream of commerce and awareness that the product is being marketed in the forum state (foreseeability) is sufficient.

fair play and substantial justice: When a defendant seeks to avoid jurisdiction, he must make a compelling case that it’s unreasonable. There are five factors to consider in weighing fair play and substantial justice (Burger King):

1. the burden on the defendant2. the forum state’s interest in adjudicating the dispute3. plaintiff’s interest in obtaining convenient and effective relief4. interstate judicial system’s interest in obtaining the most efficient

resolution of controversies5. the shared interest of the several states in furthering fundamental

substantive social policiesquasi in rem jurisdiction : A state has power over property within the state. If a court wants to assert quasi in rem jurisdiction, it must attach the property at the outset of litigation. (Pennoyer) In addition, all assertions of personal jurisdiction must comport with minimum contacts standard, so if a direct assertion of in personam would be unconstitutional, an indirect quasi in rem assertion is too. (Shaffer) Note that the value of the power a court has over a defendant in a quasi in rem case is only as much as the value of the property attached. A plaintiff can never recover more than that. in rem jurisdiction : States have power over property within the state. An individual’s debts follow them wherever they go, and a state with jurisdiction over the person may garnish their wages to pay the debt. (Harris)consent: A non-resident defendant may consent to personal jurisdiction in a state by showing up to defend the case. If a defendant does not make a motion challenging personal jurisdiction before filing an answer to the substance of the case, they have waived the objection. (Rule 12b2) A court always has jurisdiction to decide whether it has jurisdiction, and a defendant who appears specially to contest jurisdiction is bound by its judgment on that issue. (Bauxites)choice of forum: A court may sidestep the personal jurisdiction/due process question entirely merely by deciding to enforce a choice-of-forum clause in a contract. (Carnival Cruise Lines, Bremen)internet contacts: A defendant who uses the internet to enter into contracts for goods or services with residents of the forum state may be subject to personal jurisdiction there. (Zippo)

PRESENT DEFENDANTRULESStates have power over people and property within the state, and in-state service of process is always a valid basis for personal jurisdiction.tag jurisdiction: After Shaffer, there is a split of authority on whether tag jurisdiction—serving the defendant with process when they’re in the state—requires minimum contacts. (Burnham) A court may have personal jurisdiction via tag jurisdiction but opt not to exercise it if service of process was achieved by fraud of inveigling. (Tickle)

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discouraging fraud: The court does not want to set a precedent of rewarding fraud or trickery, and in cases like Tickle, that concern may be more important than allowing the plaintiff’s case to go forward.

II. Procedural Due ProcessNOTICERULESreasonable notice: The Constitution requires reasonable notice—notice reasonably calculated to reach the person. (Mullane)notice by publication: In general, notice by publication is a sham. However, personal jurisdiction concerns may recede as part of due process in the face of an overwhelming state interest (such as the need to use representative litigation to limit constant filing of new cases). (Mullane)notice by mail: If notice is sent via certified mail and returned unseen, additional steps must be taken so the party is notified. (Jones) (This creates a perverse incentive to use regular mail: Notice may never reach the personal, but you won’t know that, so no additional steps are required.)

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OPPORTUNITY TO BE HEARDRULESdue process: Due process requires that an individual be given an opportunity to be heard before being deprived of rights or property, and the hearing must be “at a meaningful time and in a meaningful manner.” (Goldberg) pre-judgment measures: To determine whether a pre-judgment remedy statute violates due process, there are three factors to consider (Mathews):

1. the private interest that will be affected by the pre-judgment measure2. the risk of erroneous deprivation through the procedure and the

probable value of additional or alternative safeguards3. costs and benefits to the public

welfare: An evidentiary hearing is required prior to even temporary deprivation of welfare payments. The hearing must closely approximate a judicial trial. (Goldberg)disability benefits: No hearing is required before termination of disability benefits. (Mathews)repossession: When a purchasers defaults on payments for an item, the state may order its repossession on behalf of the selling company based upon facts show by a verified petition or affidavit. (Mitchell) In the absence of such proof, based only upon a bare claim, the act of replevin would probably be unconstitutional, but the current status of this rule is in question due to the Mitchell ruling. (Fuentes)waiver: Waiver of the constitutional right to an opportunity to be heard must be clear and explicit. (Fuentes)garnishment: Garnishment of debtor’s wages by a creditor, absent a hearing and based solely upon an affidavit’s conclusory allegations, is prohibited by the due process clause. (Di-Chem)attachment of property: A statute authorizing pre-judgment attachment of a defendant’s property without a notice or hearing—and without bond from the plaintiff—does not satisfy the due process clause. (Doehr)

III. Subject Matter JurisdictionSTATE COURTSRULEState courts have general jurisdiction and can hear any case, the only question is whether the complaint is lodged in the correct part of the state court system.

EXCEPTIONCases within the exclusive jurisdiction of the federal courts cannot be brought in state court.

GENERAL POLICYAny powers not explicitly delegated to the federal government are reserved to the states (Constitution – 10th Amendment), so the concern over subject matter jurisdiction is grounded in federalism and is of Constitutional significance. If the federal courts hear any cases they are not explicitly authorizes to, they are essentially taking power away from the states. (Capron)

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FEDERAL COURTS – DIVERSITY JURISDICTIONRULESThe federal courts have subject matter jurisdiction over controversies arising between citizens of different states. (Constitution – Article III: Section 2) There are two requirements for diversity jurisdiction, and both must be satisfied: diversity of citizenship (Article III, 28 USC 1332a) and an amount in controversy greater than $75,000. (28 USC 1332b) Citizenship at the time of suit is the relevant consideration. (Article III – Section 1)

POLICYlocal bias: Diversity cases are generally intended to protect out of state parties from local bias against them, but there is no rule prohibiting an in-state plaintiff from bringing a diversity case.

complete diversity: Complete diversity is required for most diversity cases. It requires that no two parties on different sides of the “v.” be citizens of the same state. (Strawbridge)

EXCEPTIONclass actions: Under CAFA only minimal diversity (any one plaintiff from a different state than any one defendant) is required for federal class actions.

individual citizenship: Individual citizenship, for the purposes of diversity jurisdiction, is determined by domicile: residence with intent to stay. If party doesn’t currently intend to stay where they are or has plans to live permanently elsewhere, the court uses the last place they were domiciled to establish citizenship. (Mas) aliens: Aliens cannot be considered to be domiciled anywhere in the U.S. unless they are permanent residents or naturalized citizens. (Mas)corporation citizenship: Corporations have two state citizenships: their place of incorporation (usually Delaware) and their principal place of business (“nerve center”). (1332c1)non-corporate organization citizenship: Such organizations (i.e. unions) take on the citizenships of all their members.amount in controversy: Once the plaintiff alleges an amount in controversy, the court accepts it unless they can determine to a legal certainty that the amount couldn’t be more than $75,000. (Whitchurch) Punitive damages can be factored into the consideration. Note: The amount in controversy requirement still exists where only injunctive relief is requested—the value of the injunction must be more than $75,000.

POLICYThe Whitchurch rule errs on the side of allowing plaintiff to run the case and prevents them from having to prove their whole case before the trial.

aggregation: If an individual plaintiff doesn’t have more than $75,000 in controversy on a single claim, they can join multiple claims together to get over the requirement (unless those claims are against different defendants). However, multiple plaintiffs cannot aggregate their claims. removal: Removal moves the case from state court to the nearest federal court. You can only remove a case that could have been brought in federal court in the first place. (28 USC 1441a) An in-state defendant cannot remove a diversity case. (28 USC 1441b) Upon removal, the federal court must agree to take the case.

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state law: By definition, diversity cases deal with questions of state law because if they arose under federal law that alone would create federal question subject matter jurisdiction. (28 USC 1331, Constitution – Article III: Section 2)

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FEDERAL COURTS – FEDERAL QUESTION JURISDICTIONRULES“The federal district courts have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States.” (28 USC 1331, Constitution – Article III: Section 2) Congress decides how much or how little of this power the courts may exercise. (Article III – Section 1)procedure: Look only at the face of the complaint—not at the answer or any potential defenses to the claim—to determine whether a question arises under federal law. (Mottley) This is subject to the condition that it is a “well-pleaded complaint” that does not attempt to obscure federal issues.

POLICYuniformity: Federal question jurisdiction exists largely to ensure uniform adjudication of federal law. This rule undermines that reasoning because it ensures that some federal questions—those that come up in answers or later pleadings—will be adjudicated in state court. [However the uniformity argument isn’t that compelling anyway, since there will at most be only 3 or 4 different interpretations of a given issue whether it’s adjudicated by 9 federal circuits or all 50 states.] So why cut this analysis off at the complaint? Is it an arbitrary line?

types of federal questions: Several different types of cases can arise under federal law. Among the most straightforward types are Constitutional claims and claims based on federal statutes that create a private right of action. federal statutes: If the cause of action a plaintiff is suing under was created by a federal statute, there is federal question jurisdiction. (Smith – Holmes test) If a case involves a federal statute but Congress has indicated that it does not create a private right of action, there is no federal question jurisdiction. (Merrell Dow) Further, the mere presence of fact relating to a federal statute—such as a copyrighted song—does not automatically create federal question jurisdiction. (Harms)state law: State law claims can also give rise to federal question jurisdiction. There is a three-part test to determine whether this is the case (Grable):

1) “Does a state law claim necessarily raise a federal issue, …2) actually disputed and substantial, …3) which a federal forum may entertain without disturbing any

congressionally approved balance of federal and state judicial responsibilities?”

SUPPLEMENTAL JURISDICTIONRULEFederal courts may exercise supplemental jurisdiction over claims that are part of the same “case or controversy” as the claim over which they have original jurisdiction. (28 USC 1367a) Claims are part of the same case if they arise out of a “single nucleus of operative fact.” (Gibbs) Supplemental jurisdiction over a claim is ONLY necessary when the federal court does not have diversity or federal question jurisdiction over the claim.

POLICYefficiency: Supplemental jurisdiction allows all related claims to be disposed of in one suit.

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consistency: By keeping related claims together, supplemental jurisdiction guards against the appearance of inconsistent outcomes.access: One way to meet the aforementioned goals would be to simply bring all claims in state court, but federal courts really want plaintiffs who have federal claims to have access to a federal forum.

diversity exceptions: In cases where the federal court has original jurisdiction based on diversity jurisdiction, there are restrictions to supplemental jurisdiction (28 USC 1367b). In such cases, (“when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of 28 USC 1332”) courts don’t have supplemental jurisdiction over:

claims by plaintiffs against parties joined under rule Rules 14, 19, 20, or 24 of FRCP

claims by persons proposed to be joined as plaintiffs under Rule 19 claims by persons seeking to intervene under Rule 24

amount in controversy: In a diversity case, a federal court may exercise supplemental jurisdiction over additional plaintiffs whose claims do not meet the amount in controversy requirement. (Exxon)

POLICYimportance of diversity: Courts are more concerned about maintaining complete diversity in a diversity case than they are about the amount in controversy, which is merely a statutorily imposed way to ensure the case is important enough for federal resources.

court discretion: A federal court may decline to exercise supplemental jurisdiction over a claim if (28 USC 1367c):

1. the claim raises a novel or complex issue of state law2. the claim substantially predominates over the claim or claims over

which the district court has original jurisdiction3. the district court has dismissed all claims over which it has original

jurisdiction4. in exceptional circumstances there are other compelling reasons for

declining jurisdiction

IV. Venue and TransferVENUERULESdiversity cases: In a case where federal jurisdiction is based solely on diversity of citizenship, venue lies in the following locations (28 USC 1391a):

1. where any defendant resides, if all defendants reside in the same state2. a judicial district where a substantial part of the events or omissions

giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated

3. (catch-all) where any defendant is subject to personal jurisdiction at the time the action is commenced, ONLY if venue cannot be establish based on 1 or 2

federal question cases: In a case where federal jurisdiction is premised wholly or in part on a federal question, venue lies in the following locations (28 USC 1391b):

1. where any defendant resides, if all defendants reside in the same state

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2. a judicial district where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated (ex. when suing under a statute forbidding abusive debt collection practices, receipt of a collection notice satisfies this standard because the harm the statute is designed to prevent doesn’t occur until the notice is received – Bates)

3. (catch-all) where any defendant may be found, ONLY if venue cannot be establish based on 1 or 2

individual defendants: An individual defendant resides where they are domiciled (according to the definition used for diversity jurisdiction purposes).corporate defendants: For venue purposes, a corporation resides in any judicial district where it is subject to personal jurisdiction at the time the action is commenced. In a state with more than one judicial district, a corporate defendant subject to personal jurisdiction there is deemed to reside in any district where its contacts would subject it to personal jurisdiction were the district a separate state. If no such district exists, then it resides in the district where it has the most significant contacts. (28 USC 1391c)aliens: An alien may be sued in any district. (28 USC 1391d)objection: If a defendant does not file an objection to venue at the outset of a case, the objection has been waived. (Rule 12b3)GENERAL POLICYThe goal of venue is to put logic back into the illogic that any case can be heard anywhere, and steer it back toward an appropriate and convenient forum.

TRANSFER OF VENUERULESchange of venue: A district court may transfer a case to any other district court where it might have been brought for any of the following reasons (28 USC 1404):

convenience of parties convenience of witnesses the interest of justice

choice of law: The laws from the original venue travel with the case to the next venue.

POLICYforum-shopping: This rule prevents defendants from forum-shopping by using the transfer of venue motion to hop around until they find favorable laws. However, it allows plaintiff forum-shopping because the plaintiff can bring a suit in a distant forum with a favorable law, have the venue transferred, and benefit from that law at home.

personal jurisdiction: The new venue must be one which the defendant could have been sued without waiver of personal jurisdiction objections. The new venue must be checked against 1404 and 1391. (Hoffman)wrong venue: If a case is filed in the wrong venue, the court may either dismiss it or transfer it to any district where it could have been brought properly. (28 USC 1406)statutes of limitations: After a change of venue, the claim carries with it the statute of limitations of the original venue. (Ferens)

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FORUM NON CONVENIENS RULESForum non conveniens is a discretionary doctrine that allows a court to dismiss a case if it feels that it’s an inappropriate forum. For this to be appropriate, there must be another more convenient forum in which the case can be litigated. (Piper Aircraft) Factors to take into account when deciding on dismissal include (Gilbert):

relative ease of access to sources of proof availability of compulsory process for the attendance of unwilling

witnesses cost of obtaining attendance willing witnesses enforceability of a judgment if obtained

POLICYquality of alternative forum: If the other forum available to litigate the case is significantly less plaintiff-friendly, or has inferior or less fair procedures, is it acceptable to dismiss the case for forum non conveniens?

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V. Applicable LawRULESstate vs. federal common law: In cases where they apply, federal courts must apply the both the statutory and common laws of the states. (28 USC 1652, Erie) [The previous rule was that federal courts only had to apply state statutes and could use “federal common law” to decide cases where no statute governed. (Swift)]

POLICYuniformity: Under Swift, there was no uniformity within a state—the same type of case could be decided under state or federal law depending on the facts, so citizens of the same state weren’t treated equally (equal protection problem). Under Erie, you can still get two cases in federal court applying the laws of two different states, but the Supreme Court was more concerned with uniformity within a state court system than with federal court uniformity.forum shopping: After Erie, plaintiffs forum shop between states rather than within. When you choose a state you also choose its choice-of-law rules.state law: Federal courts now always use state law in diversity cases, so the federal court must look to the state court system for precedent. When necessary and where provided, federal court can certify a question to the state supreme court.

choice of law: Federal courts must apply the choice-of-law rules of the state in which they sit. (Klaxon)

VI. PleadingCOMPLAINTRULEScontents: A complaint must contain a “short and plain statement of facts” showing the plaintiff is entitled to relief. (Rule 8a2) It must also state the grounds for the court’s jurisdiction (Rule 8a1) and a demand for the relief sought. (Rule 8a3)amendment: A party may amend a pleading within 21 days of serving it or, if it requires a responsive pleading (i.e. a complaint), within 21 days after service of a responsive pleading or after service of a 12b/e/f motion. (Rule 15a1A – B) After the first time, a party may amend its pleading only with the opposing party’s written consent or leave of the court, which the court should give freely when justice requires. (Rule 15a1B)pleading standard: Courts “do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. (Twombly) The old “notice pleading” standard in which claim should not be dismissed under this rule unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief,” (Conley, Dioguardi), is insufficient. [Unless the court has returned to notice pleading. The current status of the pleading standard is unclear. (Erickson)

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fishing expeditions: A heightened pleading standard prevents plaintiff’s lawyers from filing borderline frivolous suits in the hope of finding a legitimate claim during discovery.burden on parties: If you raise the pleading standard, you put the burden on plaintiff to do enormous pre-trial discovery to find enough facts to plead. With a lower standard, the burden is on the defendant to produce lots of documents during discovery.conception of litigation: If you view civil litigation solely as a dispute resolution system, that’s more reason for higher pleading standard. If you view it more as an information-gathering process that leads to dispute resolution later, a lower pleading standard makes more sense because it leads to more information-gathering. A higher standard increases the danger of throwing out cases that actually belong in court.

failure to state a claim: A defendant may file a motion to dismiss for failure to state a claim upon which relief can be granted. (Rule 12b6) Such a motion tests whether the complaint rose to the pleading standard.unpleaded claims: There is a split of authority on whether a court should read claims into the complaint that were not actually pleaded. The Fifth Circuit says no (Case) while the Central District of California says yes (Pruitt).

ANSWERRULEScontents: An answer must state the defendant’s defenses to each claim against it (Rule 8b1A) and admit or deny the allegations against him. (Rule 8b1B) denials: Denial can be general (denying everything in the complaint) or specific (Rule 8b3), and must fairly respond to the substance of an allegation (Rule 8b2). Denials may also be partial (Rule 8b4). Failure to deny an allegation is treated as an admission. (Rule 8b6)lack of information: When a party lacks sufficient information to form a belief about the truth of an allegation, they must state as much. This has the effect of a denial. (Rule 8b5)default judgment: When a party fails to file an answer to a complaint or otherwise defend, a default judgment will be entered against them.

DISMISSALSRULESDefendants can file a Rule 12b motion to dismiss any or all of the plaintiff’s causes of action for:

1. lack of subject matter jurisdiction2. lack of personal jurisdiction3. improper venue4. insufficient process5. insufficient service of process6. failure to state a claim upon which relief can be granted7. failure to join a necessary party (Rule 19)

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Dismissals sort out a number of concerns about civil litigation, including frivolous suits, cases without legally sufficient cause, and jurisdiction problems.

investigation: For the purposes of deciding a Rule 12b6 motion (failure to state a claim) ONLY, all the facts in the plaintiff’s complaint are taken as true. For all other Rule 12 motions, the court can and will investigate the matter at issue. waiver: A party waives any objection to personal jurisdiction, venue, process, or service of process by failing to include it in a responsive pleading. (Rule 12h)

ATTORNEY RESPONSIBILITIESRULESensuring truthful allegations: When a plaintiff wants to allege a fact that they cannot yet prove but believe they will be able to after discovery, they must identify it as being based “upon information and belief.” (Rule 11b3)reasonable inquiry by attorneys: Attorneys must make a reasonable inquiry into the truth of clients’ pleadings, motions, and other papers filed in court to ensure that they do not contain (Rule 11b):

1. allegations made for an improper purpose (i.e. harassment)2. untrue or frivolous legal representations3. untrue factual representations4. false denials

copied complaints: If an attorney copies another’s complaint without investigating its truthfulness with regard to his own client, he may be found not to have made a reasonable inquiry. (Garr) sanctions: An attorney, law firm, or party may be sanctioned for violation of 11b (Rule 11c1), except if a represented party makes an incorrect legal representation. (Rule 11c5A) A party may file a motion for sanctions, and the accused party has the opportunity to withdraw or correct the element of the pleading in question. (Rule 11c2)

VII. JoinderJOINDER OF PARTIESRULESJoinder of parties is a two-part inquiry: In order to join a party in a lawsuit, the joinder must be authorized by a joinder device rule AND the court must have personal jurisdiction over the party.impleading: A defendant may, as a third-party plaintiff, serve a summons and complaint upon (implead) a third party who is or may be liable to it for all or part of the claim against it. (Rule 14a1) The third-party defendant must assert any Rule 12 defenses (Rule 14a2A), and any compulsory counterclaims (Rule 14a2B). They may also assert permissive counter- and cross-claims (Rule 14a2B), any defenses the third-party plaintiff has to the plaintiff’s claim (Rule 14a2C), and any claims they themselves have against the plaintiff that arise out of the same transaction or occurrence as the plaintiff’s claim against the defendant (third-party plaintiff). (Rule 14a2D)necessary parties: A party must be joined if, in their absence the court cannot accord complete relief among existing parties (Rule 19a1A) or they

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claim an interest in the subject of the action such that resolving it without them would impeded their ability to protect their interests (Rule 19a1Bi) or expose an existing party to the risk of incurring double or inconsistent obligations (Rule 19a1Bii). This rule is rarely if ever used due to the difficulty of meeting its requirements and courts’ interest in letting plaintiffs sue as they please. (Temple)

POLICYplaintiff autonomy: The plaintiff is master of his complaint, so courts are reluctant to force them to sue anyone. However, it’s rare to see a plaintiff NOT sue everyone at once because it’s more cost-effective in terms of legal fees.efficiency: This rule potentially cuts both ways—if it is strictly enforced, it may force parties to become involved in legal action when they never wanted to. However, it can also lead to MORE efficient resolution of controversies by gathering them into a single case rather than several.other means: Rule 24 intervention deals with the same parties as Rule 19, and offers the same opportunity for efficient judicial resolution without forcing anyone into a lawsuit.

permissive parties: Persons may be joined as plaintiffs if they assert any right to relief arising out of the same transaction or occurrence (Rule 20a1A) and a question of law or fact common to all will arise in the case (Rule 20a1B). Persons may be joined as defendants if any right to relief arising out of the same transaction or occurrence is asserted against them (Rule 20a2A) and a question of law or fact common to all will arise in the case (Rule 20a2B).interpleader: This is action by which a defendant sets forth a set amount of money to settle all claims against it. It essentially creates an in rem case by which the court merely decides who will get what amount. Similar to a bankruptcy action, it kills every other case about those funds. (Rule 22)

POLICYinvoluntary joinder: Interpleader is an involuntary joinder device, because the people want to fight to get the money first. Only the person with a late claim who would’ve ended up with nothing wants to be joined this way.

compulsory intervention: The court must allow a party (either a plaintiff or defendant) to intervene who is given an unconditional right to do so by federal statute or who claims an interest in the case such that excluding them would impair their ability to protect their interests. (Rule 24a1 – 2)permissive intervention: The court may, at its discretion, permit a party to intervene if they are given a conditional right to do so by federal statute or if they have a claim or defense that shares with the main action a common question of law or fact. (Rule 24b1)misjoinder: Misjoinder is not a ground for dismissal of an action. The court may, on motion or on its own, add or drop a party, or sever a claim against a party. (Rule 21)

JOINDER OF CLAIMSRULES

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Joinder of claims is a two-part inquiry: In order to join a claim in a lawsuit, the joinder must be authorized by a joinder device rule AND the court must have subject matter jurisdiction over the claim. Supplemental jurisdiction should only be used when jurisdiction is otherwise unavailable. general: A party asserting a claim, counterclaim, crossclaim, or third-party claim may join as many claims as it has against an opposing party. (Rule 18) For plaintiffs, the rules of preclusion actually make permissive joinder of claims compulsory, at least for those claims arising out of the same transaction or occurrence. compulsory counterclaim: A defendant’s pleadings must state any claim they have, at the time of the pleading’s service, against an opposing party that arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim. (Rule 13a1A)

EXCEPTIONS – The counterclaim need not be stated if:it requires the addition of a party over whom the court cannot acquire jurisdiction (Rule 13a1B)when the action commenced, it was the subject of another pending action (Rule 13a2A)

permissive counterclaim: A defendant may state as a counterclaim against an opposing party any claim that is not compulsory. (Rule 13b) By definition, these will not deal with the same transaction or occurrence as the original action.crossclaim: A party may state as a crossclaim any claim against a co-party that arises out of the same transaction or occurrence as the original action or that is the subject of a counterclaim. This includes claims for indemnification. (Rule 13g)subject matter jurisdiction: If one has a federal question compulsory counterclaim that they want in federal court, but the main claim is in state court, they have lost the opportunity to use a federal forum. To obtain a federal forum, they need to beat the other party to court. (Rule 13a2A)

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VIII. Class ActionsCLASS CERTIFICATIONRULESthe class: A class action may be maintained if the group of potential parties meets EACH of the following requirements (Rule 23a):

1. Numerosity: The class is so numerous that joinder of all members is impracticable.

2. Commonality: There are questions of law or fact common to the class.3. Typicality: The claims or defenses of the class representative are

typical of the class.4. Adequacy: The representative will fairly and adequately protect the

interests of the class.types of class action: In order for a class to be certified, the class action must fit into at least one of the follow categories (Rule 23b):

1. There are limited funds at issue.2. The claim is for injunctive or declaratory relief that would force the

defendant to act or not act in a particular way toward the class. 3. Common questions of law or fact predominate over any questions

affecting only individuals and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. (typically money damages)

meeting the requirements: A court may look beyond the pleadings to determine whether the requirements of Rule 23 have been met. (Castano)notice: Rule 23b3 class actions (money damages) require that the class be sent notice of the action that explains:

the nature, the definition of the class certified, and the claims, issues, or defenses (Rule 23c2Bi – iii)

that they can appear in court if they so choose (Rule 23c2Biv) that they may opt out of the action and how to do so (Rule 23c2Bv – vi) the binding effect of the judgment (Rule 23c2Bvii)

racial discrimination: “Race discrimination is, by definition, class discrimination. However, the mere assertion that such discrimination has occurred neither determines whether a class action may be maintained in accordance with Rule 23 nor defines the class that may be certified.” There must still be a common question of law or fact between the would-be class representative’s individual claim of discrimination and that of an entire class. (Falcon)choice of law: Federal rules of procedure apply alongside substantive state law in federal class actions. “For a state’s substantive law to be selected, that state must have a significant contact or aggregation of contacts, creating state interests, such that the choice of its law is neither arbitrary nor unfair.” (Shutts/Allstate)

POLICYcertification: If the laws among the various states are different, it’s very hard to get a class certified. In non-federal question cases defendants always try to argue that the state laws are too different so the class isn’t cohesive, because the plaintiffs have different issues of law.

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predominance and superiority: If the choice of law issues that arise in a class action are such that too many different state laws must be applied and the action is rendered unmanageable, no class can be certified due to the requirements of predominance and superiority. (Rule 23b3)tort maturity: A tort “matures” and can be settled in a class action after several individual actions have provided a sense of when the defendant typically wins and loses. GENERAL POLICYsmall claims: When a defendant has harmed a lot of people a little bit, class action allows the plaintiffs to aggregate their claims and privately solve the collective action problem. The case will pay little to individual class members, but will deter defendants’ bad behavior. The only other way to achieve this would be through government. JURISDICTIONRULESdiversity jurisdiction: In order for a class action to be brought in federal court, the action must meet the following requirements under the Class Action Fairness Act of 2005:

at least 100 class members more than $5 million in controversy in the aggregate (individual claims

don’t matter) minimal diversity – any one plaintiff from a different state than any one

defendantpersonal jurisdiction: Personal jurisdiction in a class action is more concerned with the plaintiff than the defendant. In a class action, at best the plaintiff gets a tiny amount of money, at worst they lose their right to sue. But there are several due process protections in place for them:

notice adequate representation opportunity to opt out

PRECLUSIONRULEadequate representation: A party may only be bound by the judgment in a class action if they were adequately represented. (Hansberry)pattern and practice discrimination: In a “pattern and practice” discrimination class action, later individual actions by members of the class are not precluded. (Cooper)parties: If their interests were not represented, parties who were not joined in a judgment or settlement cannot be bound by that judgment merely because they had the opportunity to intervene. (Martin)

IX. DiscoveryDEVICESRULES

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initial disclosures: Exchanged by the parties, these contain basis information such as the names and contact information of individuals likely to have discoverable information, copies of information the parties will use to support their claims or defenses, calculations of damages, and agreements in which an insurance company assumes liability for all or part of a judgment. (Rule 26a1A)depositions: Depositions may be taken orally (Rule 30a) or by written questions (Rule 31). Any individual may be deposed, even if they are not parties to the lawsuit. Generally a person may only be deposed once. interrogatories: These written questions may only be served upon parties to the lawsuit. (Rule 33) Unless otherwise stipulated or ordered by the court, a party may serve no more than 25 written interrogatories upon another party. (Rule 33a1)document requests: One can only request documents from a party to the lawsuit (Rule 34); documents can be obtained from non-parties via subpoena (Rule 45).admissions: A party may request that the opposing party admit, for the purpose of the pending action only, the truth of certain facts or documents. (Rule 36)

SCOPERULESrelevance: “Parties may obtain discovery of any non-privileged matter that is relevant to any party’s claim or defense. … Relevant information need not be admissible at trial is the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” (Rule 26b1)attorney-client privilege: Communications between a lawyer and her client are considered privileged. This privilege does not apply to the lawyer’s communications with anyone else.attorney work-product privilege: An attorney’s thoughts and impressions about the facts of a case are privileged and thus absolutely never discoverable. (Rule 26b3) Their interview notes are likely not discoverable either, while signed statements they obtain may be. (Hickman) There is a two-part test for whether attorney work-product is discoverable (DiMichel):

1) Does the plaintiff have a substantial need for the document? 2) Could the plaintiff obtain it himself without undue hardship?

POLICYadversarial system: In discovery, the aim is to ensure as much truthful testimony as possible. However, this must be balanced with maintaining the adversarial nature of the litigation system. Did the discovery rules introduce a system that is—at heart—no longer adversarial? attorney quality: The problem with discovery that if all facts are shared, cases (those that don’t have a clear weight of evidence one way or the other) will turn more on the wits of the attorney than on the “truth.” Does this cause too much reliance on lawyers, and disadvantage those who don’t have access to the best? Contrast with the German system, which a judge is the primary factfinder rather than letting opposing parties take sides and fight it out.

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surveillance tapes: These are discoverable, but are not to be turned over to the opposing party until the relevant person has already been deposed. (DiMichel)

X. Summary Judgment RULESAfter discovery and before trial, one or both parties may make a motion for summary judgment if there are no material facts in dispute. (Rule 56) Generally, there are three types of summary judgment motions:

1. Both sides move for summary judgment because there are no facts in dispute and they merely want a legal ruling. (i.e. Pruitt, Constitutional cases)

2. The plaintiff moves for summary judgment. Because the plaintiff has the burdens of production and persuasion at trial, this is essentially an assertion that they’ve proven their case.

3. The defendant moves for summary judgment on either (or both) of two grounds:

a. They assert that the plaintiff has no case.b. They claim to have evidence that destroys the plaintiff’s case.

POLICYpleading: The pleading standard affects the need for summary judgment. Under a notice pleading regime, where most cases get past the first stage, more vigorous use of summary judgment is needed to dispose of non-meritorious claims before they get to trial. Since notice pleading has been eroded and the standard raised, there is less need for courts to use summary judgment as an efficiency or docket-clearing device.

witness credibility: If there is no fact at issue other than the credibility of a given witness, a court may deny summary judgment and allow the trial to go forward so that the witness may be cross-examined. (Cross) However, if the witness is a disinterested third party rather than someone with a vested interest in the case, the court may grant summary judgment. (Lundeen)evidentiary burden: A plaintiff must convince a jury of their case by a preponderance of the evidence (greater than 50%) in order to prevail. If there is no means by which this could occur, summary judgment for the defendant will be entered. (Houchens)burden of proof: When a defendant moves for summary judgment, they need not produce affirmative evidence that the plaintiff has no case. (Celotex, Rule 56b) However, they should still canvas the discovery materials and point out the deficiencies. If the motion is based on the defendant’s possession of killer evidence, they may possibly still have to affirmatively show as much, but this rule has likely been overruled. (Adickes)heightened burden: When the burden of proof at trial has a standard heightened above the “preponderance of evidence”—i.e. the “clear and convincing evidence” standard of libel—a judge must raise the summary judgment standard accordingly. “In ruling on a motion for summary judgment, the judge must view the evidence through the prism of the substantive evidentiary burden.” (Liberty Lobby)

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XI. TrialRIGHT TO A JURY TRIALRULESconstitutional right: The 7th Amendment to the U.S. Constitution preserves the right to a jury trial as it existed in 1791 when the courts were divided between law and equity. (US Constitution – 7th Amendment, Rule 38a)

POLICYsettlement: The possibility of a jury trial, even with all the obstacles to it, hanging over settlement negotiations, creates better outcomes for plaintiffs. (Buffalo Creek)

demand: In order to have their claim tried by a jury, a party must serve the opposing party with a written demand (which may be included in the pleading), and file the demand in court. (Rule 38b) Once a demand is made, the court must try the specified claim by jury unless the parties stipulate to a non-jury trial or the court finds there is no federal right to one for the claim in question. (Rule 39a) When no demand is made, the claim will be tried by a judge, who may still, on motion, order a jury trial for any appropriate issue. (Rule 39b)waiver: A waives the right to a jury trial by not properly serving and filing a demand. (Rule 38d)selecting a jury: Parties’ attorneys may examine prospective jurors and issue up to three peremptory challenges during the selection process. (Rule 47a – b, 28 USC 1870) All challenges for an actual cause will be determined by the court. (28 USC 1870) A jury must begin with between 6 and 12 members, and each must participate in the verdict unless excused under Rule 47c. (Rule 48a)

POLICYdiversity: In the federal courts, by statute, the voting rolls are used to call people for service because voting laws have non-discrimination elements that will help ensure a good cross-section of people.discrimination: The Supreme Court outlawed peremptory challenges based on race or gender, but they are hard to prove so they usually get by.

jury instructions: A court must instruct a jury on how to apply the law, and attorneys may file requests for the instructions it wishes a court to give them. (Rule 51)

POLICYappeal: Incorrect jury instructions are what most frequently cause appellate judges to reverse trial judges. Most states have pre-approved model instructions for different case types, which judges just read to juries, to solve this problem.

verdict: Unless otherwise stipulated by the parties, the verdict must be unanimous and returned by at least 6 jury members. (Rule 47b)special verdict: The court may require a jury to return a special verdict with written findings on each issue. (Rule 49a)general verdict with questions: The court may require a jury to return a general verdict but with answers to written questions. (Rule 49b1) When the answers are inconsistent with the verdict, the judge may order a judgment

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according to the answers, direct the jury to reconsider its answers, or order a new trial. (Rule 49b3A – C)facts found by a jury: “No fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.” (US Constitution – 7th Amendment)judge vs. jury: To determine whether the right to a jury trial exists for a particular case, the court must determine whether it would have been tried at law or equity in 1791. To do so, the court must look at which court such cases—or an analogous case type—would have been tried in, and consider what remedy is being sought. If the case would have been tried in a court of law (usually requests for injunctive relief or declaratory judgments), there is no right to a jury trial. If the case would have been tried at equity (typically money damages), there is a right to a jury trial. (Terry)

POLICYanalogous case: Brennan argued that the requirement of looking to history for an analogous case to the one at bar is too burdensome and that courts should look only at the remedy to decide whether there’s a right to a jury trial. Other justices argued the opposite.

preclusion: Where possible, the court should order the trying of claims such that the jury claims are resolved first and thus not precluded by the judgment of a judge. (Beacon Theaters) Where this is not possible, it’s no big deal. (Parklane)

JUDGMENT RULESjudgment: A judgment includes a decree and any order from which appeal lies. (Rule 54) A judgment must embody a remedy (money damages, a declaratory judgment, injunctive relief), without which it cannot be considered final. judgment as a matter of law: (“directed verdict”) Once the opposing party has been fully heard on an issue, a party may make a motion for judgment as a matter of law. (Rule 50a) The judge may grant the motion, deny it, or hold it in abeyance.

POLICYalternative to summary judgment: A judge may be more willing to grant a Rule 50 motion than to grant summary judgment because at this point in the trial there has been an opportunity to view and assess the actual evidence and witnesses.jury problems: Parties may be wary of sending a case to the jury due to the possibility that they’ll decide based on biases rather than fact or law.right to a jury: Judges may be wary of granting Rule 50 motions because they appear to conflict with the constitutional right to a jury trial, and no judge wants to belittle that right. It may be better to wait and hope that the jury will reach the right conclusion without having the case taken from it.

renewed motion for judgment as a matter of law: (“judgment notwithstanding the verdict/NOV”) After the jury returns its verdict, either party may make a renewed motion for judgment as a matter of law, which is

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essentially an assertion that the issue never should have been sent to a jury because a reasonable jury could only have found one way. (Rule 50b)

POLICYoverturning the jury: Judges may be wary of granting renewed Rule 50 motions because they give the appearance of overturning the jury’s finding (and also of having wasted their time), thus undermining the 7th

Amendment right to a jury trial. new trial motion: After the verdict is given, party may request and the court may grant a new trial (in either a jury or a judge case). (Rule 59) The motion should be granted only if a jury verdict is against the clear weight of the evidence. A party who has a judgment as a matter of law entered against them has 28 days to file a new trial motion. (Rule 50d)relief from a judgment or order: On motion, the court may relieve a party from a final judgment due to (Rule 60b):

1. mistake, inadvertence, surprise or inexcusable neglect2. newly discovered evidence3. fraud4. judgment being void5. judgment having been satisfied, released or discharged6. any other reason that justifies relief

remittur: If the jury comes back with an exorbitant verdict, the judge may offer to the plaintiff the choice to either accept a lower amount of damages, or go through a new trial. (Additur, increasing the amount of damages, is not permitted because the jury never found the higher number.)

APPEALRULESnew trial motion: Conditionally granting a new trial motion does not affect the judgment’s finality for purposes of appellate review. If the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. (Rule 50c2)final judgments: Appellate courts have jurisdiction over final decisions of the district courts. (28 USC 1291) A judgment is not final unless it embodies a remedy. (Liberty Mutual)interlocutory judgments: Appellate courts may exercise interlocutory review over orders granting injunctive relief or over controlling issues of law for which immediate appeal may advance the ultimate termination of the suit. (28 USC 1292a – b)

POLICYefficiency: Allowing too many interlocutory judgments slows down the litigation system, but allowing the right number can help to dispose of cases more quickly. They key is finding a balance, which is why the U.S. federal court system has neither a 100% final judgment rule nor a default rule to allow all interlocutory appeals.

writ of mandamus: An appellate court may issue a writ of mandamus to order a district court judge to take some action or vacate some decision, e.g. a reference. (LaBuy)New York approach: In New York state courts, nearly anything—final judgment or no—may be appealed on an interlocutory basis.

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judges’ findings of fact: A court of appeals will only reverse a finding of fact by a judge if it is clearly erroneous. (Hicks)juries’ findings of fact: Only when there is a complete absence of probative facts to support the conclusion reached can a jury’s finding of fact be reversed. (Lavender)findings of law: A court of appeals reviews lower courts’ findings of law de novo. (Hicks)

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XII. PreclusionPRECLUSIVE EFFECTRULEThe preclusive effect of a judgment always arises as a concern in the second case on the claim or issue. The rendering court cannot decide the preclusive effect of its own judgment, but the judgment usually carries with it the preclusion rules of the rendering court. All preclusion is an affirmative defense—if a party does not plead it, they waive it.

POLICYefficiency: Preclusion prevents judicial resources from being expended on adjudicating claims and issues that have already been settled.consistency: Preclusion guards against inconsistent outcomes (or the appearance of them) in cases dealing with the same issue or controversy between parties, which would undermine the legitimacy of the whole system. But why not allow multiple trials to ensure a correct outcome? Depends whether the system is seeking absolute truth or only relative.

CLAIM PRECLUSIONRULESfirst order claim preclusion: A party may not re-litigate the literal exact same claim that they have already litigated in a prior case. merger and bar: Once a claim from a single transaction or occurrence has been litigated and decided upon, any other claims from that transaction merge into the first judgment and the plaintiff is barred from suing for them later. (Rush)defense preclusion: If a defendant fails to bring a compulsory counterclaim in the first case, they are precluded from suing on that claim later. (Mitchell) However if a defendant does not bring a permissive counterclaim in the original action (one that brings up a separate transaction or occurrence) they are not precluded later. (Linderman)

ISSUE PRECLUSIONRULESrequirements: There are four requirements that must be met for issue preclusion to take effect:

1. The issues in the first and second case must be identical.2. The issue was actually litigated and decided upon in the first case, not

merely stipulated to. (There was a final judgment on the merits.)3. The issue was necessary to the judgment in the first case, not

ancillary. 4. There was a full and fair opportunity to litigate in the first proceeding.

POLICYrarity: Mutual issue preclusion is rare because it would require the same parties and the same subject to be in a second case without first raising claim preclusion.

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administrative boards: The issues decided by a government administrative board may not be identical to those that would be litigated in federal court by the same parties on the same subject. (Levy)non-judicial proceedings: For the results of non-judicial proceedings such as arbitration to have preclusive effect, they must be sufficiently formal and adjudicatory in nature. The scope of its jurisdiction, its procedural safeguards, and the opportunity for judicial review of adverse decisions should be taken into account. (Jacobs)

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MUTUALITYRULESmutuality: Mutuality is the requirement that for a judgment to have preclusive effect, both parties must have been bound by it in the first case. (They must have both “had their day in court.”) The strict requirement of mutuality has largely been broken down. (Bernhard)

POLICYprocedural opportunities: When one party has a procedure available to them that the other doesn’t, it feels counter to equality. Mutuality says everyone has to have the same procedural opportunities, but breaks down because the parties in the second case aren’t similarly situated: Bernhard has had her day in court while the bank has not, so non-mutuality corrects the imbalance.

non-mutual defensive issue preclusion: A defendant may preclude a plaintiff from re-litigating an issue that they previously litigated and lost in a previous case. This is a particularly useful doctrine in patent infringement cases. (Blonder-Tongue)non-mutual offensive issue preclusion: A plaintiff may preclude a defendant from re-litigating the issues the defendant has previously litigated and lost against another plaintiff. (Parklane)

POLICYinefficiency: Non-mutual offensive issue preclusion can be inefficient because it allows sideline-sitters in the first case to come take advantage of a winning judgment later, rather than joining in the first case to resolve their claims.new business model: Parklane allows business model for lawyers where they sit and wait for a defendant to be sued and lose, then go find some plaintiffs, sue them, use issue preclusion, and win with virtually no effort. It opened more plaintiff opportunity, but led to a situation in which lawyers end up doing piling on work and not much actual detection of wrong-doing.settlement: The doctrine incentivizes defendants to settle so that later plaintiffs have no judgment to use for issue preclusion. It raises the stakes for the first litigation.

virtual representation: The Supreme Court has rejected preclusion based on the notion of “virtual representation.” A party who has not had their own day in court may only be precluded by a judgment in the following circumstances (Sturgell):

1. they agree to be bound by it2. certain substantive relationships—“privity”—may justify preclusion3. if a non-party’s interests are represented adequately in the first suit

(i.e. a class action or a suit by a trustee or guardian)4. if the non-party assumed control over the prior lawsuit5. if the non-party colluded to avoid the preclusive effect by litigating

through a proxy6. special statutory schemes, such as bankruptcy, or other suits brought

on behalf of the public at large

XIII. Alternatives to Litigation

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SETTLEMENTRULEStiming: Parties tend to settle after jurisdiction and motions to dismiss have been settled and discovery has taken place. (Buffalo Creek)plaintiff approval: Where an attorney is representing multiple clients in a single case, she may not agree to any settlement until she has obtained, in writing, approval from the clients of the aggregate amount and the projected breakdown. court approval: Settlements for individual and groups of plaintiffs typically do not require approval by the court, the plaintiffs merely withdraw their complaint under Rule 41 and sign a contract agreeing not to sue the defendant. Class action settlements do require court approval. consent decree: This is typically a settlement in a class action against the government. With a consent decree, the court remains involved to monitor compliance. (Courts typically monitor compliance with injunctions too.)class action settlements: Class action settlements for money damages or injunctive relief are considered final judgments.

POLICYevaluating settlements: A number of measures may be used to determine whether a settlement was good or not, including:

where negotiations began vs. where they ended the value added for the plaintiff the return on investment for the law firm whether the dispute was resolved

concerns about settlements: Settlements don’t generate judgments and thus don’t create any rules of law. They may also reflect disparate resources between plaintiffs and defendants. It’s unclear whether they actually serve the interest of justice or whether they merely resolve disputes.

ARBITRATIONRULESarbitration agreements: Arbitration agreements are contracts. In deciding whether to enforce them, a court examines whether they are unconscionable or whether compliance should be ordered. neutral arbiter: The absence of a neutral arbiter in a system of arbitration may lead a court to strike down the agreement as unconscionable. (Hooters)differences from judicial procedure: Shorter statutes of limitations, remedy limits, damage caps, a truncated discovery process, and the absence of a jury are all acceptable components of an arbitration system. (Circuit City)

POLICYpurpose: The entire point of arbitration is that it is quicker and more efficient than civil litigation, and that’s what makes the differences from judicial procedure acceptable.

XIV. Evaluating Litigation SystemsThe key values to keep in mind when evaluating systems of adjudication are:

Fairness (to BOTH parties) Accuracy

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Participation Efficiency

XV. Noteworthy Characteristics Our Legal System

Adversarial Importance of forum choice (forum-shopping) Settlement-oriented Great deference to juries but constant avoidance of them Procedure can outweigh substance

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