WELCOME TO CIVIL PROCEDURE!

Prof. Susanna Frederick FischerColumbus School of LawThe Catholic University of America202-319-5568 fischer@law.eduClass 1: 8/26/2002

THE STUDY OF LAW There was a man in our town

and he was wondrous wise:he jumped into a BRAMBLE BUSHand scratched out both his eyes--and when he saw that he was blind,with all his might and mainhe jumped into another oneand scratched them in again

- Karl Llewellyn, The Bramble Bush (1960)

CUA: A COMMUNITY OF SCHOLARS

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TODAY’S CLASS Learn what is Civil Procedure, what you’ll

study, and why it’s an important and interesting course

Learn the course goals and objectives Learn the course policies and procedures Learn about the course web page at

http://faculty.cua.edu/fischer Learn about the scope and purpose of the

Federal Rules of Civil Procedure by studying Rule 1 of the FRCP

What’s Civil Procedure?

CIVIL (not criminal)PROCEDURE (not

substantive)

Difference Between Civil and Criminal Cases Criminal cases are brought by the gov’t

representing society Criminal cases result in punishment (usually

fine or imprisonment) Civil cases can be between private parties

and/or the government Civil remedies include financial compensation

(damages) or orders to do or stop doing something (injunctions) and sometimes punishment (punitive damages)

Different burdens of proof

SUBSTANTIVE LAWS Substantive laws (e.g. tort, contract,

property) “are the part of the law that creates,defines, and regulates the rights, duties, and powers of parties” (Black’s Law Dictionary (7th ed. 1999)

Example: tort law (trespass) says that an uninvited guest cannot intrude on another person’s land

Definition of Procedure (from Merriam-Webster online)

1(a) a particular way of accomplishing something or of acting (b) a step in a procedure

2 (a) a series of steps followed in a regular definite order <legal procedure>

3 (a) a traditional or established way of doing things

PROCEDURAL LAWS Procedural laws are “[t]he rules that prescribe

the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.”

Thus, they are the rules that govern litigation. They are the rules that the parties must follow as they bring their case and also the rules for the court administration of the case

Examples: who can bring case, which court can hear a case, enforcement

Difference Between Substantive and Procedural Law Can Be Unclear

Some rules that seem procedural have been deemed substantive by courts, such as statutes of limitations.

Why is Procedure Important in Law?

Why is Procedure Important in Law?

The purpose of civil procedure is to promote the JUST, SPEEDY, and INEXPENSIVE resolution of CIVIL DISPUTES

See Rule 1 of the Fed. R. Civ. P.

What Kinds of Procedures Do Courts and Other Dispute Resolution Bodies Need?

What Kinds of Procedures Do Courts and Other Dispute Resolution Bodies Need? These include:

Rules for jurisdiction (over defendant, over subject matter)

Rules for how disputes enter the court system Rules for how what’s in actually in dispute is

determined (pleading) Rules for how disputes progress through the

court (or tribunal) system Rules for pretrial fact investigation (discovery) Rules for how disputes are terminated (jury

verdict? judge’s order? before trial? after trial?)

Sources of Procedure Legislation Rules promulgated by the courts (include

federal rules of general application such as the Federal Rules of Civil Procedure, Federal Rules of Appellate Procedure; local rules for individual courts; judge’s rules; statutory rules in U.S. Code; state rules (in states’s statutes and/or as supplemental rules)

Cases that interpret the rules

Federal Rules of Civil Procedure Originally promulgated by

U.S.Supreme Court in 1937 under authority of Rules Enabling Act of 1934

Original rules effective in 1938 and have been amended many times.

Advisory Committee on Civil Rules recommends amendments to FRCP

Federal Rulemaking: FRCP If Advisory Committee initially recommends

changes, there is a public comment period/public hearings. If AC then approves, goes to Judicial Conference Standing Committee. If SC approves, goes to Judicial Conference. If JC approves, goes to U.S. Supreme Court.

After Supreme Court prescribes amendment, Congress has a statutory time period to enact legislation to reject, modify, defer amendment.

SCOPE of the FRCP Where do these rules apply?

SCOPE of the FRCP Where do these rules apply? Federal district courts Exceptions in Rule 81 include bankruptcy

proceedings to extent provided by Federal Rules of Bankruptcy Procedure, where prize proceedings in admiralty, certain statutory review procedures like reviewing orders of Secretary of Agriculture, proceedings to enforce orders of National Labor Relations Board

SCOPE OF FRCP In some circumstances, FRCP

supplements statutory procedural scheme

What are some examples?

SCOPE OF FRCP In some circumstances, FRCP

supplements statutory procedural scheme What are some examples? Habeas corpus

proceedings, quo warranto proceedings, admission to citizenship proceedings, arbitration proceedings, proceedings for enforcement/review under Longshoreman’s and Harbor Worker’s Compensation Act

The U.S. Court System Separate STATE and FEDERAL

court systems Each STATE and D.C. has its own

court system

How Will We Learn Civil Procedure? Using sample case files (in CB) as study tools,

we’ll follow the path of a federal civil action from its beginning through trial, verdict, and enforcement of judgment

We’ll read important Federal Rules of Civil Procedure and important statutory provisions and, sometimes, state rules

We’ll read important court decisions (interpretation of rules/court-made doctrine)

We’ll apply rules and cases to hypothetical practice problems, like those in Glannon

What topics will we study? See Assignments List 1. Introductory unit 2. Pleading 3. Joinder 4. Discovery 5. Right to Jury Trial, Jury Selection6. Bypassing the

jury: other types of adjudication 6. Verdicts, Judgments and Bypassing the Trier of

Fact 7. Jurisdiction and venue 8. Preclusion 9. Wrapping Things Up: Forum non conveniens, Erie

doctrine, review

Course Objectives/Goals Learn important civil procedure concepts Learn the procedural steps of a civil

action in federal district court Develop effective learning techniques,

including briefing cases and understanding rules

Develop exam-taking and oral presentation skills

HAVE FUN WHILE LEARNING!