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Civil Procedure, 2005 Ed.
This set of CDS includes a 9 hour lecture on Civil Procedure and a 25 page handout. For the Law School Legends Audio Series, we found the truly gifted law school professors most law students can only dream about - the professors who draw rave reviews not only for their scholarship, but for their ability to make the law easy to understand. We asked these select few professors to condense their courses into a single lecture. And it’s these lectures you’ll find in the Law School Legends Audio Series. With Law School Legends, you’ll get a brilliant law professor explaining an entire subject to you in one simple, dynamic lecture.
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First published January 1, 1995
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February 19, 2010
Imma teach ya a little bit about what to do if you want to sue or be sued in the federal court system of the United States (and who doesn’t, right? Can’t get enough!) or if you just want to geek out on rules:
DISCLAIMER: THIS IS A TOTALLY SKEWED AND JOKEY INTERPRETATION OF THE RULES OF CIVIL PROCEDURE. IT SHOULD NOT BE USED OR CITED IN A COURT OF LAW OR AT PARTIES (YOU KNOW, WHEN THE FRCP COMES UP). I’M NOT LYING, BUT I’M NOT TELLING THE WHOLE TRUTH EITHER. ALSO, IF THERE’S ANYTHING LAW SCHOOL’S TAUGHT ME SO FAR, IT’S THAT I AM PROBABLY TOTALLY WRONG ABOUT THE WHOLE THING. There, that’s fun and lawyery to have a disclaimer, huh?
Jurisdiction
Personal Jurisdiction: That means, “Where can the court tell you what to do?”
1. Don’t think people can’t sue you where you live - or at least where you use pavement. If you use the pavement, the courts have got you. I’m not necessarily saying that the federal government cares more about asphalt than anything else, but it is kind of funny how that works out.
2. Also, if you want to be an asshole to someone using your words, find out where they live first, because you might regret it when you have to travel across the country for a court appearance.
3. On the other hand, if someone’s suing you in another state, you should ask yourself if you’ve used the pavement of that state or if your words did some damage there, because you might just get off of the whole thing if you didn’t do either of those.
That’s it.
Subject Matter Jurisdiction: That means, “Which court system can break up this fight?” I know that doesn’t sound different than personal jurisdiction, but it is - because it’s about subject matter! Ha ha, aren’t we having fun? The Constitution says that federal courts can tell pirates, Microsoft, and bigots employed by the government (for example) what to do, but most other people have to be handled by state courts.
1. Federal Question. That’s the pirates/Microsoft/bigots part (see Article III, Section 2 of the Constitution, 28 U.S.C. §1331). On top of the special topics in Article III and §1331 (pirates and Microsoft), if the Constitution talks about the issue or the U.S. Congress passed a statute about it (bigots employed by the government), the federal courts decide what it means. Except, the dispute has to actually be about a federal question. The parties can’t just pretend there is a federal question involved to get it into federal court. Apparently people are gunning to get into federal court.
2. Diversity. Federal court can also take cases where the parties on opposite sides are from different states and they are claiming more than $75,000 (28 U.S.C. §1332). The idea behind this is that within the U.S. people don’t like people from other states. Maybe this is less true now than it has been in the past – when there was a Civil War – but it seems still pretty true. So, supposedly federal courts are less biased than state courts even though you’d probably be going to court in the same city.
Venue
So, then, if the court has jurisdiction, a suit can happen in a district where any defendant resides or where the harm was felt. As a last resort, venue is appropriate where there is personal jurisdiction over a defendant.
If the plaintiff sues where venue isn’t appropriate, federal courts can transfer to other federal courts where venue is appropriate. State courts can transfer to federal court (“removal”) but can’t transfer to each other. Nobody can transfer to courts of other countries. If courts can’t transfer, they’ll just dismiss the case and let the plaintiff sue again in the proper venue.
Notice
You have to tell people if you’re suing them. To do that, you use process service to give them the court documents. You have to actually tell people, not just pretend to, but if someone has, like, a bazillion houses that they actually use, you can serve someone process at one of the houses. It doesn’t have to be the actual person you’re suing, but the person has to be old enough, whatever that means.
ETA 2/18/2010: CHOICE OF LAW!!!
OMG. I can't believe I forgot to include choice of law in my first version of this. That basically means that I have to take the short bus to lawyer school for the next couple of years. Choice of law is THE reason people take, and hate, civ pro. It's like I was writing a review of punk and forgot to talk about the Sex Pistols. There has got to be some kind of lawyer cone of shame for me to wear or something.
So, there are a lot of different laws you could use with any case. Like if William Shatner comes and karate chops you in Iowa, but you want to sue him in Kentucky, do you use the Kentucky law about karate chops or the Iowa law about karate chops? It can be VERY complicated. It's, like, a big cream pie in the face from those who built the government. However, there is one fun thing about choice of law: every state has a choice of law law. So, if you say that a lot of times, it almost makes it worth it. I wonder what Bob Loblaw's law blog has to say about choice of law law.
Anyway, enough silliness. The way I understand it is you've got these buckets and every case falls into one or the other.
Supremacy. If there's a federal law and a state law, and they conflict with each other, the federal law wins.
Erie. Because of the case Erie Railroad v. Tompkins, federal judges can't just make up what they think should happen in a case (a.k.a. there is no federal common law). They have to use the choice of law of the state in which they sit. The reasons for Erie (the TWIN AIMS) are to make it so it's not WAY easier to sue in federal court than state court (to prevent forum shopping) and so federal and state courts aren't always contradicting each other (equitable administration of justice). So, if there's ever a question over which law to use, the court just has to look to the twins to justify using one or another.
Hanna v. Plumer. The thing that makes all of this still kind of a mess is that federal courts use federal procedural rules. So, if something is procedural, they go with the federal way of doing things. If something is substantive, they go with the state way of doing things. That's a problem because people fight about what is actually procedural and because sometimes procedural things are substantive, too. Somehow the world goes on despite this confusion. I know - mystery. The way you're supposed to decide it according to Hanna v. Plumer goes like this:
FEDERAL RULE ON POINT? YES!
DOES IT CONFLICT WITH STATE LAW? (YES! FEDERAL LAW WINS) (NO! USE STATE LAW!)
FEDERAL RULE ON POINT? NO! (USE STATE LAW!)
That's about it from choice of law, I think. Don't worry, also, I didn't forget this when I took the final. Whew!
Pleadings / Discovery / Rule 11
This is why people hire attorneys. I’ll spare you.
Res Judicata and Collateral Estoppel
You can’t sue someone twice for the same thing. Res judicata is about doubling up the same entire case. Collateral estoppel is about the same issue. This is actually pretty complicated, and privity is the magic word, but there’s one area of this civil Sudoku game where my brain just can’t see around the corner. It’s when you CAN’T use non-mutual defensive collateral estoppel. You can’t use it against a plaintiff who wasn’t in the original case. It makes sense, but I can feel my brain wrinkling when I think about it.
Joinder
Once you’re suing someone for one thing, you can sue them for whatever else at the same time. They can sue you for whatever else, also. Then they can add other parties and other parties can add themselves and they can all sue each other. EXCEPT the plaintiff can’t sue a new defendant. That’s upsloaping, and upsloaping=shenanigans.
Class Actions
If everyone starts adding too many people, it’s smarter to have a class action. But everyone has to have some claim in common. Then there has to be a representative that members of the class would agree on (who wouldn’t appall a jury, is rich, and has a good attorney), and that the defendant won’t get too mad about (who isn’t atypically sympathetic). I guess, usually, it just works out like whoever gets to the courthouse first is the rep, though, unless other people have a major problem with that.
So, that’s what I learned so far this year. I think this is probably the most boring topic possible, so they have to kind of feed it to you making airplane noises. For example, this was the most well-organized and clearly printed of any of my textbooks this semester. Also, at one point, I got to talk about William the Conqueror in class, and that was fun and comforting. 1066 was a big year for the English language and English common law. Every once in a while, I was like, “Oh, yumm, this learnin’ tastes good!” Then I’d wake up and realize it was yucky vegetables.
DISCLAIMER: THIS IS A TOTALLY SKEWED AND JOKEY INTERPRETATION OF THE RULES OF CIVIL PROCEDURE. IT SHOULD NOT BE USED OR CITED IN A COURT OF LAW OR AT PARTIES (YOU KNOW, WHEN THE FRCP COMES UP). I’M NOT LYING, BUT I’M NOT TELLING THE WHOLE TRUTH EITHER. ALSO, IF THERE’S ANYTHING LAW SCHOOL’S TAUGHT ME SO FAR, IT’S THAT I AM PROBABLY TOTALLY WRONG ABOUT THE WHOLE THING. There, that’s fun and lawyery to have a disclaimer, huh?
Jurisdiction
Personal Jurisdiction: That means, “Where can the court tell you what to do?”
1. Don’t think people can’t sue you where you live - or at least where you use pavement. If you use the pavement, the courts have got you. I’m not necessarily saying that the federal government cares more about asphalt than anything else, but it is kind of funny how that works out.
2. Also, if you want to be an asshole to someone using your words, find out where they live first, because you might regret it when you have to travel across the country for a court appearance.
3. On the other hand, if someone’s suing you in another state, you should ask yourself if you’ve used the pavement of that state or if your words did some damage there, because you might just get off of the whole thing if you didn’t do either of those.
That’s it.
Subject Matter Jurisdiction: That means, “Which court system can break up this fight?” I know that doesn’t sound different than personal jurisdiction, but it is - because it’s about subject matter! Ha ha, aren’t we having fun? The Constitution says that federal courts can tell pirates, Microsoft, and bigots employed by the government (for example) what to do, but most other people have to be handled by state courts.
1. Federal Question. That’s the pirates/Microsoft/bigots part (see Article III, Section 2 of the Constitution, 28 U.S.C. §1331). On top of the special topics in Article III and §1331 (pirates and Microsoft), if the Constitution talks about the issue or the U.S. Congress passed a statute about it (bigots employed by the government), the federal courts decide what it means. Except, the dispute has to actually be about a federal question. The parties can’t just pretend there is a federal question involved to get it into federal court. Apparently people are gunning to get into federal court.
2. Diversity. Federal court can also take cases where the parties on opposite sides are from different states and they are claiming more than $75,000 (28 U.S.C. §1332). The idea behind this is that within the U.S. people don’t like people from other states. Maybe this is less true now than it has been in the past – when there was a Civil War – but it seems still pretty true. So, supposedly federal courts are less biased than state courts even though you’d probably be going to court in the same city.
Venue
So, then, if the court has jurisdiction, a suit can happen in a district where any defendant resides or where the harm was felt. As a last resort, venue is appropriate where there is personal jurisdiction over a defendant.
If the plaintiff sues where venue isn’t appropriate, federal courts can transfer to other federal courts where venue is appropriate. State courts can transfer to federal court (“removal”) but can’t transfer to each other. Nobody can transfer to courts of other countries. If courts can’t transfer, they’ll just dismiss the case and let the plaintiff sue again in the proper venue.
Notice
You have to tell people if you’re suing them. To do that, you use process service to give them the court documents. You have to actually tell people, not just pretend to, but if someone has, like, a bazillion houses that they actually use, you can serve someone process at one of the houses. It doesn’t have to be the actual person you’re suing, but the person has to be old enough, whatever that means.
ETA 2/18/2010: CHOICE OF LAW!!!
OMG. I can't believe I forgot to include choice of law in my first version of this. That basically means that I have to take the short bus to lawyer school for the next couple of years. Choice of law is THE reason people take, and hate, civ pro. It's like I was writing a review of punk and forgot to talk about the Sex Pistols. There has got to be some kind of lawyer cone of shame for me to wear or something.
So, there are a lot of different laws you could use with any case. Like if William Shatner comes and karate chops you in Iowa, but you want to sue him in Kentucky, do you use the Kentucky law about karate chops or the Iowa law about karate chops? It can be VERY complicated. It's, like, a big cream pie in the face from those who built the government. However, there is one fun thing about choice of law: every state has a choice of law law. So, if you say that a lot of times, it almost makes it worth it. I wonder what Bob Loblaw's law blog has to say about choice of law law.
Anyway, enough silliness. The way I understand it is you've got these buckets and every case falls into one or the other.
Supremacy. If there's a federal law and a state law, and they conflict with each other, the federal law wins.
Erie. Because of the case Erie Railroad v. Tompkins, federal judges can't just make up what they think should happen in a case (a.k.a. there is no federal common law). They have to use the choice of law of the state in which they sit. The reasons for Erie (the TWIN AIMS) are to make it so it's not WAY easier to sue in federal court than state court (to prevent forum shopping) and so federal and state courts aren't always contradicting each other (equitable administration of justice). So, if there's ever a question over which law to use, the court just has to look to the twins to justify using one or another.
Hanna v. Plumer. The thing that makes all of this still kind of a mess is that federal courts use federal procedural rules. So, if something is procedural, they go with the federal way of doing things. If something is substantive, they go with the state way of doing things. That's a problem because people fight about what is actually procedural and because sometimes procedural things are substantive, too. Somehow the world goes on despite this confusion. I know - mystery. The way you're supposed to decide it according to Hanna v. Plumer goes like this:
FEDERAL RULE ON POINT? YES!
DOES IT CONFLICT WITH STATE LAW? (YES! FEDERAL LAW WINS) (NO! USE STATE LAW!)
FEDERAL RULE ON POINT? NO! (USE STATE LAW!)
That's about it from choice of law, I think. Don't worry, also, I didn't forget this when I took the final. Whew!
Pleadings / Discovery / Rule 11
This is why people hire attorneys. I’ll spare you.
Res Judicata and Collateral Estoppel
You can’t sue someone twice for the same thing. Res judicata is about doubling up the same entire case. Collateral estoppel is about the same issue. This is actually pretty complicated, and privity is the magic word, but there’s one area of this civil Sudoku game where my brain just can’t see around the corner. It’s when you CAN’T use non-mutual defensive collateral estoppel. You can’t use it against a plaintiff who wasn’t in the original case. It makes sense, but I can feel my brain wrinkling when I think about it.
Joinder
Once you’re suing someone for one thing, you can sue them for whatever else at the same time. They can sue you for whatever else, also. Then they can add other parties and other parties can add themselves and they can all sue each other. EXCEPT the plaintiff can’t sue a new defendant. That’s upsloaping, and upsloaping=shenanigans.
Class Actions
If everyone starts adding too many people, it’s smarter to have a class action. But everyone has to have some claim in common. Then there has to be a representative that members of the class would agree on (who wouldn’t appall a jury, is rich, and has a good attorney), and that the defendant won’t get too mad about (who isn’t atypically sympathetic). I guess, usually, it just works out like whoever gets to the courthouse first is the rep, though, unless other people have a major problem with that.
So, that’s what I learned so far this year. I think this is probably the most boring topic possible, so they have to kind of feed it to you making airplane noises. For example, this was the most well-organized and clearly printed of any of my textbooks this semester. Also, at one point, I got to talk about William the Conqueror in class, and that was fun and comforting. 1066 was a big year for the English language and English common law. Every once in a while, I was like, “Oh, yumm, this learnin’ tastes good!” Then I’d wake up and realize it was yucky vegetables.
March 1, 2012
Civil procedure is tricky (non-mutual offensive collateral estoppel, res judicata, interpleader, you get the picture), but with this supplement you're almost guaranteed to stay ahead of the curve.
The author also does Barbri videos, which are helpful in getting a general sense of the major topics covered in 1L civil procedure courses. This book, on the other hand, covers the coursework of Civil Procedure 1 & 2. The book is thorough (without droning on) and explains complicated concepts in a clear and understandable way. It's worth every penny.
The author also does Barbri videos, which are helpful in getting a general sense of the major topics covered in 1L civil procedure courses. This book, on the other hand, covers the coursework of Civil Procedure 1 & 2. The book is thorough (without droning on) and explains complicated concepts in a clear and understandable way. It's worth every penny.
May 6, 2018
THANK YOU THANK YOU THANK YOU FOR FINALLY HELPING ME UNDERSTAND CIVIL PROCEDURE.
Honestly, anyone who is trying to understand the FRCP... this is your guide.
Honestly, anyone who is trying to understand the FRCP... this is your guide.
December 8, 2024
Made an extremely complex and sometimes confusing topic both interesting and (relatively) easy to understand.
May 20, 2015
a very nicely laid out casebook for civil procedure. This one even had color! Broke down the issues for pleadings and practice in a concise and understandable method!
December 16, 2016
So glad I took this class but so happy to be done with it! Lots of interesting things in here although often inaccessible and obscure.
Displaying 1 - 6 of 6 reviews