Table of Contents

I. Introduction

What is “Civil Procedure?” (And why are you spending so much

time on a subject that’s not even on the bar exam?) ....................... 1

How to use Legalese to English: Civil Procedure to get an A on your

Civil Procedure exam....................................................................... 2

The different resources contained in this book .......................... 3

A step-by-step plan for using this book: ..................................... 5

II. Personal Jurisdiction: When traveling doesn’t seem like so much fun.

Orientation: Understanding what Personal Jurisdiction is about, why

you spent 4 weeks reading cases about it, and where “due

process” fi ts into this whole mess .................................................... 7

Pennoyer v. Neff: Answers to burning questions, such as: Who’s

Pennoyer? What’s the point of reading this case? ........................ 10

Hess v. Pawolski and the mess that happened after the idea of

“consent” was stretched................................................................. 14

International Shoe and the “Minimum Contacts” test —the “real”

rule of Personal Jurisdiction........................................................... 15

General Jurisdiction (continuous & systematic contacts) ......... 16

Specifi c Jurisdiction (isolated or sporadic contacts) ................. 18

Applying the International Shoe Rule through the ages, from

water heaters to motorcycles to burgers to websites: McGee v.

International Life Insurance Co., Hanson v. Denckla, Gray

v. American Radiator, Asahi Metal Industry Co. v. Superior

Court, Shaffer v. Heitner, Helicopteros Nationales de

Colombia v. Hall, World Wide Volkswagen Corp. v. Woodson,

Burger King Corp. v. Rudzewicz, Zippo Manufacturing v.

Zippo Dot Com, Bellino v. Simon, Pebble Beach v. Caddy,

Burnham v. Superior Court ................................................... 22

Long-Arm Statutes: What they are and how to use them ................. 45

Notice: An important and related concept .......................................... 47

Mullane v. Central Hanover Bank & Trust ............................ 48

FRCP 4 ..................................................................................... 50

Wrap Up: Personal Jurisdiction .......................................................... 50

Study Recipe: Personal Jurisdiction .................................................. 52

Personal Jurisdiction Exam Answer Flowchart ................................... 55

III. Forum Non Conveniens:One last effort to get rid of this case.

Orientation: What FNC means, why a defendant might make this

kind of motion, and what’s required to win one .............................. 59

In Re Union Carbide Corp. Gas Plant Disaster............................... 61

Sinochem International Co., Ltd. v. Malaysia International ........... 61

Wrap-up: Forum Non Conveniens—Where should you be, what should

you know, what should you do next? ............................................. 63

Study Recipe: Forum Non Conveniens ............................................. 64

IV. Venue:Which federal court in the forum state?

Orientation: Everything you need to know about choosing the right

venue for the action ....................................................................... 69

28 U.S.C. 1391(b) ............................................................................... 70

The relationship between Venue and Personal Jurisdiction ............... 71

Wrap-up: Venue Where should you be, what should you know, what

should you do next?....................................................................... 72

Study Recipe: Venue ......................................................................... 73

V. Subject-Matter Jurisdiction:The rules of playing with the big boys.

Orientation: Understanding what Subject-Matter Jurisdiction means,

and clearing up some common confusion ..................................... 77

Diversity Jurisdiction under 28 U.S.C. § 1332 ................................ 80

Diversity of Citizenship: A simple concept that can be made

confusing by guests, divorces, students, and two-way mirrors.

Mas v. Perry and common diversity hypos. ............................. 81

Amount in Controversy: What this requirement means, when you

can aggregate, and what you should expect on your exam. .... 83

Federal Question a/k/a “Arising Under” Jurisdiction under

28 U.S.C. § 1331 ...................................................................... 85

The general concept of § 1331 and the issues that arise ........ 85

Mottley v. Nashville: The Well-Pleaded Complaint Rule and

how you should expect this to pop up on your fi nal ................. 86

American Well Works v. Layne: Creating the “Creation

Test” .......................................................................................... 87

Smith v. Kansas City Title and Trust Company: When a

federal question is wrapped up in state law ............................. 88

Merrell Dow v. Thompson: What in the world is a “private

right of action”?......................................................................... 88

Grable & Sons v. Daru: Creating a test for “arising under” that

you will need to use on your test .............................................. 89

Wrap-up: Subject-Matter Jurisdiction—Where should you be, what

should you know, what should you do next? ................................. 91

Study Recipe: Subject-Matter Jurisdiction ......................................... 93

Subject-Matter Jurisdiction Exam Answer Flowchart .......................... 96

VI. Supplemental Jurisdiction § 1367:Two for the price of one.

Orientation: Are we there yet? Why are we still talking about

jurisdiction? Where does Supplemental Jurisdiction even fi t in? ... 99

United Mine Workers v. Gibbs: The “I’m already here, Judge”

case ............................................................................................. 100

§ 1307, Ancillary, Pendent, Nucleuses and how they all fi t together . 101

Owen Equipment & Erection Co. v. Kroger and Finlay v. U.S.:

The birth of § 1367....................................................................... 102

Wrap-up: Supplemental Jurisdiction—Where should you be, what

should you know, what should you do next? ............................... 109

Study Recipe: Supplemental Jurisdiction ........................................ 110

VII. Removal :When going to Federal Court is the defendant’s idea.

Orientation: Finally, the defendant gets a say in the forum! ............ 113

Everything you need to know about 28 U.S.C. § 1441(a) ................. 114

Wrap-up: Removal—Where should you be, what should you know,

what should you do next? ............................................................ 115

Study Recipe: Removal ................................................................... 116

VIII. State Law in the Federal Court: The Dreaded Erie Doctrine:Getting through Erie without dropping out of law school.

Orientation: Understanding what “The Erie Doctrine” is about, why

everyone is terrifi ed of it, and why it’s not really a battle of State v.

Federal law .................................................................................. 119

Swift v. Tyson: A story of how things were a mess in the old days .. 121

Erie Railroad v. Tompkins: The origin of the “Erie Doctrine,” but, oddly,

not the place you should begin an exam analysis ....................... 123

Guaranty Trust v. York: Another test to learn! This time, it’s the

“Outcome-Determination Test” .................................................... 126

Byrd v. Blue Ridge: The Byrd Balancing Test (no, it doesn’t really

balance birds) .............................................................................. 127

Gasperini v. Center for Humanities: Learning to compromise ...... 129

Semtek International Inc. v. Lockheed Martin Corp.: With all this

compromising, who needs lawyers? ............................................ 132

Hanna v. Plummer: Learning what the Supreme Court really means

by “identical.” ............................................................................... 133

Walker v. Armco Steel: The Supreme Court making sure that we

really, really understand Hanna ................................................... 136

Klaxon v. Stentor Electric: A legal palindrome: using choice-of-law

rules to answer a choice-of-law question..................................... 137

Putting It All Together: A discussion of how to use all this case law

when determining what law might apply to a particular case....... 138

Wrap-up: The Erie Doctrine—Where should you be, what should you

know, what should you do next? .................................................. 144

Study Recipe: The Erie Doctrine: State Law in the Federal Courts . 145

Erie Doctrine Exam Essay Flowchart ................................................ 148

IX. Res Judicata and Collateral Estoppel:Cool legal tools, and we’re not talking about the lawyers!

Orientation: Where did all this Latin come from? ............................ 151

Seeing the two at work: Rush v. City of Maple Heights ................. 153

Issue Preclusion a/k/a Collateral Estoppel: When you’re allowed to

do it .............................................................................................. 155

Dealing with vocabulary: mutual, non-mutual, offensive, and

defensive ..................................................................................... 157

Parklane Hosiery Co., Inc. v. Shore ............................................... 158

Claim Preclusion a/k/a Res Judicata: When you’re allowed

to do it .......................................................................................... 160

Wrap-up: Collateral Estoppel and Res Judicata Where should you

be, what should you know, what should you do next? ................. 163

Study Recipe: Issue and Claim Preclusion...................................... 164

Collateral Estoppel Exam Flowchart ................................................. 168

Res Judicata Exam Flowchart........................................................... 170

X. Joinder:Everybody, all together now.

FRCP13 and 18: Joinder of Claims ................................................. 173

FRCP 14, 19, 20: Joinder of Parties ................................................. 181

Study Recipe: Joinder ..................................................................... 194

XI. Rule 12: Motion to Dismiss:The champion of defendants.

FRCP 12(a) through (i) .................................................................... 199

FRCP 12 (b)(6): Understanding what “failure to state a claim”

actually means in English ............................................................ 201

The old way and the new way: Conley, Twombley and Iqbal ......... 205

Wrap-Up: FRCP 12 Where should you be, what should you know,

what should you do next? ............................................................ 210

Study Recipe: FRCP 12 .................................................................. 212

XII. The Rest of the Rules of Civil Procedure

What to do with “the rest of the rules” ............................................... 217

Rule 11: Keeping lawyers in line....................................................... 217

Rule 22. Pretty interpleads with a cherry on top ............................... 224

FRCP 23. Very class actions ............................................................ 226

Study Recipe: The rest of the rules ................................................. 231

XIII. Summary Judgment: Federal Rule 56:Cutting to the chase.

Orientation: A quick win ................................................................... 235

Everything you need to know about FRCP 56 .................................. 235

The cases you’ll cover: Celotex and Cross ..................................... 237

Wrap-up: Summary Judgment Where should you be, what should

you know, what should you do next? ........................................... 241

Study Recipe: Summary Judgment ................................................. 243

XIV. How To Get a D on a Civil Procedure Exam

Fundamental Truths about Civil Procedure .................................. 247

The Top 7 Ways that 1Ls Crash in Civil Procedure...................... 248

The Freakout Factor: A discussion of exam-induced anxiety ......... 250

Starting Late: Instruction for students beginning to read this book

at the end of the semester ........................................................... 252

45

divorce. No minimum contacts = no jurisdiction, so case dis-

missed!” In fact, the husband was so averse to answering the

wife’s complaint that he made a special appearance in court

(meaning that he appeared only to contest jurisdiction), and

tried to quash (same thing as squash) the summons. Kinda

makes you wonder whether this guy really wanted the divorce,

doesn’t it?

The Supreme Court had very little patience for these an-

tics, and explained that the entire minimum contacts analysis

applies to defendants that aren’t actually physically present in a

state. The minimum contacts test is a way of stretching the idea

of “presence.” But when a defendant is physically present in a

state and is served with in-hand process, guess what? There’s

personal jurisdiction. Nice try.

Go ahead. Practice your explanation of the presence rule

here:

Long-Arm Statutes

We know what you’re thinking: “Where do long-arm stat-

utes fi t into all this?” And many of you are hoping that the an-

swer is, “Nowhere. Just ignore anything you hear about long-

arms.” Sorry to disappoint. The bad news is that you have to

learn about long-arm statutes. The good news, though, is that

they’re really not all that diffi cult. We promise.

What we’ve discussed from the beginning of this chap-

ter until now is called the “Constitutional analysis” of personal

jurisdiction. But the court that is trying to exercise jurisdiction

over a non-resident defendant has more than the Constitution

to worry about. The court must be sure that jurisdiction follows

the guidelines of the state long-arm statute.

long-arm stlong-arm st

46

Here’s how it works: Every state has a long-arm statute that says,

essentially, “We permit our state to have jurisdiction over defendants who

aren’t from our state.” Some of those statutes are very broad and vague,

and say things like, “Anything that would pass the International Shoe test

will also be authorized under our state’s long-arm statute.” Other states

have statutes that are narrow and say things like “we authorize jurisdic-

tion over an out-of-state defendant only when that defendant causes a

tort in our state.”

Why would a state give its own court less jurisdiction than the Con-

stitution would allow? Well, maybe some states have limited court re-

sources. Maybe some states don’t want every yokel in the world to come

and fi le suit in their courts. All you need to know is that the states are

Constitutionally permitted to exercise jurisdiction in any case that would

pass the Shoe test. But just because they are permitted to do so does not

mean that they must do so. Bottom line: On your fi nal exam, in order for

the state to have personal jurisdiction over your non-resident defendant,

the case must follow the rules of the minimum contacts test and the rules

of the applicable state statute.

If your long-arm statute is one of the broad ones, then pretty much,

all you’ll have to worry about is the Constitutional analysis. If your long-

arm statute is a narrow one, then you’ll have to check that your facts

meet both the requirements of the long-arm statute itself and the re-

quirements of the Shoe test.

So how do you use the long arm statute in your analysis?

Step #1: Look at the requirements of your long-arm statute to see

if your facts fi t within its framework.

Step #2: If your long-arm statute would authorize jurisdiction in

your hypothetical case, then move along to doing the Constitutional anal-

ysis.

You may have also heard your professor put it this way: A state can

give an out-of-stater more protections than due process demands, but it

cannot give an out-of-stater less protection than due process demands.

47

Get your exam language ready now. Write out your intro about

the relationship between long-arm statutes and the Constitu-

tional analysis.

Go and look at some actual long-arm statutes. Can you see the

difference between the ones that are broad and the ones that

are narrow? What kind of language will you examine to fi gure

out whether you have a broad one or a narrow one?

Choose one broad one and one narrow one. Now go back to

one of your hypos from earlier in this chapter. Write out a corre-

sponding analysis for each of your chosen long-arm statutes.

Notice

Before we leave personal jurisdiction, we need to give

a little nod to our friend, “Notice.” In order to acquire personal

jurisdiction over a defendant (regardless of whether that defen-

dant is in-state or out-of-state), the defendant must receive “no-

tice” of the lawsuit. This is one of those things that you defi nitely

knew before starting law school, but that you forgot somewhere

between IRAC and the Socratic method.

“Notice” still means now what it meant before you started

Civil Procedure—that the guy being sued is told that he’s being

sued. Back in Pennoyer’s time, the idea of “notice” often got all

jumbled up with the idea of jurisdiction. These are two separate

48

(but related) concepts. In order for a lawsuit to properly proceed

against any defendant, the court (or “forum”) must have a legiti-

mate basis for exercising jurisdiction over that defendant. Even

when a court has a nice, solid basis for exercising jurisdiction

(like, say, the defendant passed the Shoe test with fl ying colors),

the defendant must still receive “notice” of the action before it

can properly proceed against him. And the reverse is also true.

If a plaintiff hires the best process-server in town, tracks down

the defendant, and notifi es him about a lawsuit, that defendant

can still have the case dismissed if the court lacks a proper ba-

sis for exerting personal jurisdiction over him.

For you mathematical folks out there, here are a few

equations:

MINIMUM CONTACTS + LONG-ARM AUTHORIZATION =

PERSONAL JURISDICTION

PROPER SERVICE OF PROCESS = NOTICE

PERSONAL JURISDICTION + NOTICE = THE CASE CAN

PROCEED AGAINST THIS DEFENDANT IN THIS PARTIC-

ULAR FORUM STATE (of course, we’ll still need to check

that the case is properly in federal court).

Since this is law school, we’ll do a case about notice, just

to drive the point home.

Mullane v. Central Hanover Bank & Trust339 U.S. 306 (1950)

For notice to be proper, it must be reasonably calculated to reach the people it needs to reach

Here’s how you can conceptualize what happened: A trust

fund was set up for a group of people (this is like a gigantic bank

49

account where a bunch of people all share the

same account). The people who all share a

trust fund are called “benefi ciaries.” Profes-

sional bankers who are in charge of investing

the money in the trust fund are called “trustees.”

At some point, the trustees needed to notify all

the bene fi ciaries about something

going on with the trust. It’s not

important why the trustees needed

to notify the bene fi ciaries.

The trustees followed the

New York banking law’s instructions

about notifi cation, and published a

message in the local newspaper tell-

ing all the benefi ciaries what was hap-

pening with the trust. As a result, some

of the benefi ciaries found out how the trust-

ees had been managing the trust fund, and

they were not very happy. Those benefi ciaries

started a whole big lawsuit against the trustees. One of the is-

sues the plaintiffs raised in that lawsuit was the issue of im-

proper notice. According to the trust benefi ciaries, it was unfair

of the trustees to have published notice in the newspaper.

In this case, the Supreme Court was deciding whether

that banking law (which had authorized the trustees to notify

everyone by publishing in the newspaper) was constitutional.

The Supreme Court held that the notifi cation law was uncon-

stitutional, because alerting people to important information by

putting notices in tiny print in the back of a newspaper is a lousy

way to do so. “Notice by publication” (the legal term for printing

notices in the newspaper) may work as a last resort, but if there

had been a way for the trustees to actually contact the benefi -

ciaries, then the trustees should at least have tried contacting

them directly.

The Supreme Court set out a standard about notice in

this case: When people need to be notifi ed about legal pro-

ceedings, the method of notifi cation must be “reasonably calcu-

All the minute details about trusts, benef icia ries, trustees, and other confusing banking concepts.

All the minutell the

This case can be frustrating to read, because the case isn’t about a lawsuit. It seems a little strange to learn about the major rule regarding Notice by reading a case in which it hadn’t been a plaintiff serving a defendant with a complaint in a lawsuit. But don’t be frustrated by that oddity. It really makes no difference. If it helps, just pretend that the trustees were suing the benef icia ries. Even though the notice by publication hadn’t been a notif ication about a dispute, the underlying problem with that notif ication (that it really wasn’t done in a way that would reach the interested parties) functioned in the same way as it would have if this whole thing had been about a dispute.

52

Study Recipe

Personal Jurisdiction

Ingredients:

Legalese to English • personal jurisdiction notes and case briefs

1 skeleton outline •

1 set of complete class notes •

1 set of completed workbook entries •

Your professor’s syllabus •

3-4 old exams from your professor (if none are available, use exams from a different •professor)

1 textbook, complete with table of contents •

1 case chart (recipe follows) •

1 fl owchart (recipe follows) •

STEP 1: PREPARE YOUR WEEKLY STEW

(Complete Step 1 at the end of each week.)

Sit in front of your computer and for each case, do the following:

Look over your class notes •

Look over your homework notes •

Look over your textbook’s headings •

Look over your class syllabus •

Look over the • Legalese to English explanation of the case

Combine all pieces into one document.

How will you know when it’s done? It’s done when each case has a tasty, bite-sized

explanation that is in your own words. Once you’ve decided on your preferred wording,

capture that wording in the way you like it best. That means that you should be thinking

about what kinds of fonts, graphics, or formatting will help you best understand and re-

member the key points of every case and concept.

53

STEP 2: CREATE CASE CHARTS

(Complete Step 2 at the end of your unit on Personal Jurisdiction. Closer to exams,

you should memorize this chart.)

Create a document that looks something like this: •

PERSONAL JURISDICTION

THE FORUM STATE DID HAVE JURIS-

DICTION OVER THE DEFENDANT

THE FORUM STATE DID NOT HAVE JU-

RISDICTION OVER THE DEFENDANT

Burger King v. Rudzewicz

Lots of contacts with Florida equaled gen-

eral jurisdiction for Burger King guys

Helicopteros: No jurisdiction because the

contacts with Texas weren’t enough to be

considered “continuous and systematic.”

There were no offi ces, no employees, etc.

Asahi (tire valve case): No jurisdiction

because putting something into the stream

of commerce is not, on its own, enough to

justify jurisdiction.

World Wide Volkswagen: No jurisdiction

because bringing a car to a state does not

mean that the car dealer had a contact

with that state. Plaintiffs misuse the con-

cept of “foreseeability” in their losing argu-

ment.

STEP 3: PROFESSOR TELEPATHY

(Complete Step 3 within two weeks of fi nishing Personal Jurisdiction in class.)

Brainstorm about what your professor is going to ask you on your fi nal exam. Here’s

how to do that:

Look over old exams, both those written by your professor and those written by •other professors.

Look over the • Legalese to English workbook questions.

54

Talk to your classmates and study group mates. •

Look over your class notes and determine the “hot topics” on which your pro- •fessor seems to focus.

STEP 4: DEVELOP YOUR “CANNED ANSWER”

(Complete Step 4 after you have mastered your understanding of the case law

and have spent at least two hours brainstorming possible test questions.)

You can pre-write most of your exam answer by planning. For example, ev-

ery personal jurisdiction answer will begin with some statement about the

International Shoe Test. The more you plan, the better your answer is bound

to be!

Remember, this plan is not being made for the purpose of “fi guring out” whether

the court does or does not have jurisdiction. Your job will always be to answer

“maybe.” Making an exam plan will require you to plan how you will explain that

the answer is “maybe.” If you’ve learned about IRAC or CIRAC or CRAC or some

other acronym, this is the place to plan to put that method into action.

STEP 5: TAKE A MOCK FINAL EXAM

(Complete Step 5 at least a week before your fi nal exam.)

Using your self-created charts and canned answers, draft an answer to an actual

exam question. The sooner you do this, the better! If you have enough time, you

can write out a practice answer and have it reviewed by a TA, a professor, or a

tutor.

Remember, fi nal exams are like marathons. If you were training for a marathon,

you’d defi nitely spend time weight-lifting, eating right, exercising, and stretching,

but you’d also need to actually practice running. Only a serious jackass would run

for the very fi rst time at the marathon. The same logic holds true here. If the fi rst

time you’ve ever written an exam answer is on your exam, it will not go as well as

it would have if you had practiced.

148

Erie Doctrine Exam Essay Flowchart

In order to spot an Erie issue on a Civil Procedure exam, you must have a fact pattern that

puts a lawsuit in federal court based on diversity jurisdiction—if the case is in federal court

based on a federal question, then it’s clearly the federal law that will be applied!

Look at the particular state law (either a statute or a case law precedent) that is in question.

Is that law clearly a substantive law? (This could mean that it’s a tort statute, a contracts

statute, a choice-of-law statute, a state common law trend, etc.)

YES, it’s definitely a substantive

law.

Under Erie’s interpretation of the

RULES OF DECISION ACT

(“RODA”), federal courts must apply the law of

the state that the court is sitting in. Erie

decided that when the RODA said “the law,” it

meant both statutes AND case law.

This is true for all kinds of laws—even “choice-

of-law” laws (like in Klaxon).

NO, the law might be considered procedural.

Discuss that while Erie explains that federal courts must apply state substantive

law, courts have always been clear that federal courts may apply federal

procedural law. This means that a federal court would use

a federal rule if EITHER:

(1) there is only a federal rule present, and there is no corresponding state rule.

OR

(2) there is both a state rule AND a federal rule present, and they are in direct in head-on collision with each other.

** If there’s no federal rule in direct head-on collision with the state rule at hand, then under Erie, the federal court must apply the state rule. (this is the rule from Hanna) The Walker case places most fact patterns

in the analysis of this side. Usually, we’ll find that there is no direct collision, and

therefore, we must go through the rest of the Erie analysis.

Discuss that in deciding which law to apply, the federal court must decide whether the “arguablyprocedural rule” that is in question will be considered substantive or will be considered procedural. If the federal court decides that the law is “substantive,” then under Erie, it will HAVE TO apply that law.

If the federal court decides that it is “procedural,” it will be free to ignore the rule.

To figure out whether it will consider the rule to be “substantive” or “procedural” (for purposes of theErie analysis), the federal court would apply the Outcome Determinative Test—just as the court inGuaranty Trust did.

The Outcome Determinative Test: Would applying the state law in question affect the ultimate outcome of the case as a whole?

149

NO YES

Even when you’ve concluded that the state law in question definitely does or might affect the ultimate outcome of the case, there are times when the federal court should still do things “the federal way”—if there is some

particular interest that the federal courts have in making sure that all federal courts do things uniformly. (This is the point of Byrd.)

When you’re discussing how you should apply a state law (because it’s been found to be “substantive,” then you should still talk about whether applying that state law would be more important than ignoring that state

law, in the interest of uniformity. Discuss the balancing of that federal uniformity against the regular Erie interest in making sure that

there is no forum shopping between state and federal court.

Under Guaranty, if applying the state law in question would definitely affect the outcome of the case as a whole,

then the federal court will conclude that the law is (at least for choice-of-law purposes) a substantive law. Once

the federal court has decided this, the federal court must, under Erie, apply

that state law. Discuss how applying the state law in this kind of scenario ensures that the

court in your hypo is following the “twin aims of Erie” (avoiding forum shopping and ensuring that cases come out the same in state court and federal court).

If you’re not sure which of the two

sides you’re actually on, just discuss them

both.

But stay

organized!!

Under Guaranty, if applying the state law in question

would not affect the outcomeof the case as a whole, then

the federal court will conclude that the law is

merely a procedural rule. Once the federal court has

decided this, the federal court is free to ignore that

state law, and do things the “federal way.”

Come to some kind of a conclusion one way or another, about whether the state law in question is an importantlaw (and must be followed by the federal court) or is a less important procedural rule (and can be ignored by the

federal court in favor of using an exactly corresponding federal rule instead).

Sometimes, it’s impossible to know whether applying thestate law would affect the outcome of the case. If yourhypo gives you a situation like that, then go directly tothe Byrd Balancing Test as described below. This test tells us that in cases where the affect of applying thestate law is unclear, we should be sure to balance theinterests of (1) making sure state and federal courtscome out the same way and (2) making sure that all

federal courts do things uniformly.

247

XIV. How To Get a D on a

Civil Procedure Exam

Congratulations. You’ve made it to the end of this book.

Or maybe you’re starting here. Either way, good for you. By this

point, you’ve accepted that most of your classmates have got-

ten straight As for the past fi fteen years, and that you might be

in a situation that isn’t as easy as you might have expected.

We’ve been there. We feel your pain, your anxiety, and

your frustration. And we’re here to help. First, we’d like to in-

troduce you to some fundamental truths about law school in

general and Civil Procedure, in particular.

It’s not necessary to be an expert in this subject in or- •

der to get a good grade in the course. It sure seems like

you’d do better if you found out that you’re distantly related

to the Glannon family, doesn’t it? But think of it this way: tak-

ing a Civil Procedure fi nal is like participating in Battle of the

Bands. Being an expert in rock music may help you out. But

ultimately, it’s the performance that counts. Establishing a

relationship with the audience is key, and doing what makes

them happy is mandatory. The same goes for pleasing your

professor. It’s not expertise that will wow him—it’s what you

bring to the stage when it’s your turn.

Your classmates aren’t doing any better than you are • . If

you were to listen to conversations in the school cafeteria,

you’re bound to hear any number of jackasses pontifi cat-

ing about the true value of Pennoyer, or about the strategic

use of nonmutual offensive collateral estoppel. But if you

were listening with our ears, you’d hear what we hear: 1Ls

are awkward with their discussion of complex topics. Most

loudmouths make serious errors when they yap about top-

ics they purport to understand. You knew you were smart

before you came to law school. Don’t let twelve weeks of

loudmouthing take your identity away from you. You’re still

248

smart. And in two more years, you’ll have the big diploma to

back it up.

Preparation for class is not the same thing as preparing •

for an exam. Sure, you’ll have to prepare for class in order

to avoid being ridiculed. But even that woman who sits in the

front row, recording every lecture and referring to the profes-

sor as “Phil” instead of “Professor Obtusenstein” won’t do

well unless she prepares properly for the exam.

For many 1Ls, Civil Procedure creates the perfect storm

for exam-induced anxiety. It’s about as confusing as law school

topics can get. It’s duller than the paint on the Woodsons’ 1978

Volkswagen. And it’s a four-credit course. But learning the haz-

ards is key to avoiding peril.

To that end, we’d like to share with you our experience

about what has led many students before you to get Ds in Civil

Procedure. Don’t be afraid. You know that old axiom—“those

who cannot remember history are doomed to repeat it.” By get-

ting familiar with some common pitfalls, you’re sure to avoid

them.

Here are the top seven ways that students crash in Civil

Procedure:

1. Obsess about class, but play ostrich with the fi nal exam.

It’s easy to waste hours looking up terms that appear in the fi rst

paragraph of early Civil Procedure cases. 1Ls often convince

themselves that the key to understanding the underlying point

of a case is to picture the facts that led to the initial cause of

action. In this class, that’s just not true. Poring over the fi ner

points of F.O.B. shipping in International Shoe or researching

the history of the contributory negligence statute in Erie simply

won’t help you prepare for your fi nal. In fact, the only thing that

will help you prepare for fi nal exams are fi nal exams. Get them

now. Use your professor’s old exams as well as other profes-

sors’ exams. Get a sense of what the question is likely to bring

up, and prepare now to answer that question. The sooner, the

better. Don’t “save” copies of old exams for later in the semes-

249

ter—the sooner you start, the better you’ll do. And if your pro-

fessor makes you feel unprepared for classroom discussion,

just close your eyes and repeat, “grading is anonymous, grad-

ing is anonymous.”

2. Think about it, read about it, talk about it, but never write

about it. Professors can spot an unprepared student a mile

away. For new law students, lack of confi dence with complex

concepts manifests as awkwardly written essays. And awkward

language can also be the result of failure to practice writing.

Students who write about the minimum contacts test for the fi rst

time at their fi nal exams are setting themselves up for failure. If

you fi nd yourself saying “I know what res judicata means, but

I just can’t say it,” you are lying to yourself. If you can’t say it,

then you don’t know it. After all, if someone asked you to ex-

plain how to make a ham sandwich, you’d be able to do that

without excuses. Go back to your books. Re-read your notes.

Get a handle on the topic, and then practice, practice, practice

writing your essay.

3. Losing your mind at the exam. Nothing makes us cringe

more than a post-exam 1L who tells us that she spent four pag-

es doing a minimum-contacts analysis on her hypo’s plaintiff.

Or that she used the Shoe rule to test whether the parties had

diversity of citizenship. We understand that by exam-time, you

have so much rolling around in your brain that nothing seems

to have a common-sense answer anymore. That’s why it’s es-

sential to start early. If you do the right prep work, you’ll develop

a clear picture of what issues your fi nal exam is likely to raise.

When your exam question is something familiar, you’ll be less

likely to lose your mind on test day.

4. Missing the Erie question: A classic professory move is

to bring up a state law, but fail to characterize the issue as a

“choice of law” question. Even worse, many professors expect

students to do a Hanna analysis without pointing to a specifi c

federal statute to use in that analysis. Remember—any time

you see a state law, think Erie. And when you see that state law,

check if there is a FRCP that’s close enough to it to warrant a

Hanna analysis.

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5. Inserting yourself into your essay: Civil Procedure class is

not the time for opinions. Should you ever fi nd yourself writing

about what you “think” the court should do, STOP. Civil Proce-

dure is about predicting what a federal court would do, based

on the huge history of federal case law you’ll have studied. Pre-

dictions, not opinions.

6. Forgetting to tickle your professor’s fancy. People who

become Civil Procedure professors really like this stuff. And

what’s more, they envision themselves as your personal proph-

ets of the FRCP. So you have to give them some shout-outs

on your exam. Don’t use language from a study guide (even

ours!), or a textbook, or Wikipedia to make your points—use

your professor’s special hand-crafted wording. You may have

learned things in language that appeals to you (and we hope

that you have!), but when it’s time to write, you need to use your

professors’ buzzphrases in a way that says, “Oh Professor! You

have led me through the valley of Civil Procedure. Without you,

I would never have found my way. But now, with your guidance,

I shall go forth with the procedural acuity of Oliver Wendell Hol-

mes.”

7. Stopping too soon. Civil Procedure is extra diffi cult because

its sub-topics differ drastically from one another. That means

that how it feels to write a personal jurisdiction essay is pretty

different from how it feels to write a joinder essay. As a result,

students often end their essays without adequately discussing

all angles. It takes a lot of time and a lot of words to fully argue

both sides of a complex issue. Be honest with yourself. Practice

what you’ll say on an exam. Make sure that you’ve tied up any

loose-ends when discussing the myriad issues on your exam.

The Freakout Factor

In our work with thousands of law students, we’ve heard

the same phrases repeated, time after time. “I know what the

law is, but I just can’t say it” has been perhaps the most com-

mon 1L mantra of frustration. And a variation on that theme has