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

lhoffman@uh.edu

Assistant: Lillian Whitelawhite@central.uh.edu

(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)