So far I have talked about my Legal Writing, Torts, and Property classes. The only class left on the 1L’s first semester schedule is Civil Procedure. This class teaches us the rules of how to approach a lawsuit in the federal courts, and the procedures of federal civil courts.
To gain some understanding let’s put Civ Pro—what the cool kids call it—into context with my other courses. In the Property blog, we talked about how a small rug company felt the large rug company was stealing their patterns (an intellectual property issue). In the Torts blog, we talked about how someone slipped and fell on a banana peel at a grocery store (a negligence issue). Let’s assume you are an attorney working at Awesome, Awesome & Fantastic. The owner of the small rug company comes to you desperate and about to go out of business because of the alleged theft. That same day, the grocery store patron comes to you on crutches with a handful of medical bills. Because you are a sympathetic go-getter, you decide to take their cases and help them get justice! What do you do first?
This is what Civ Pro helps us understand. Let’s turn to our Federal Rules of Civil Procedure book that lists everything we need to know (this is your closest ally in the course and you won’t survive without it). Turning to Rule 1, it introduces itself through scope and purpose: “These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
Let’s speedily move to Rule 11, which requires us to investigate our clients’ stories to make sure we have valid suit before we bring it before a court. Is this a frivolous lawsuit? Is it for “any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation?” Rule 11 also outlines sanctions applicable to our firm and us if we were to violate it. But since only the most ethical and skilled attorneys work at Awesome, Awesome, and Fantastic, we thoroughly investigate our clients’ plights and are confident we have a true case.
Next, we will need to decide what court system to bring the case to, Federal or State. Attorneys have many reasons to have one over the other, but let’s assume we have decided it would best for us to bring these cases in the federal courts. Federal courts are limited jurisdiction, meaning only special types of cases are allowed. Most cases are concurrent, meaning they could be brought in both state and federal courts, leaving it up to the parties to duke it out for their preference.
The most certain way to get a case into federal court is if our case arises under a federal question. An easy example would be any case addressing a party’s amendment rights. Since our case does not do this, we would have to look to subject matter jurisdiction through diversity. We would have to show that all the plaintiff and defendants are citizens of different states, and therefore it would be prejudicial for it to be brought in a state system. Achieving subject matter jurisdiction was the first topic we learned and it took a couple of weeks. So let’s just assume, we have it and we can now proceed to try our case in the federal courts.
After establishing personal jurisdiction and venue (where physically we are going to try our case) and exchange our pleadings (our claims, their answers or defenses), the next big step is called discovery. This is a process of research and preparation. Here is where we begin to really dig deep into things. We send out interrogatories, sets of 25 questions, to parties and potential witnesses. We speak to experts, doctors and botanists for our banana victim and rug designers and economists for our rug company. Our experts will evaluate the facts and create a report of what information they will use to testify. We set up depositions, on the record and under oath interviews with potential witnesses and parties. (If you watch the show Suits, this is where all the drama happens in the conference room.) Throughout this entire process, we are handing information back and forth between the parties. We have to submit the expert reports, copies of our interviews, and a list of witnesses we plan to call at trial.
Despite what TV would have us believe, trial really has little to no surprises. Both parties know who is going to talk and what they are going to say. Because of this dissemination of information, discovery is where most cases conclude. Only a fraction of cases ever make it to trial. Based on all the information gathered in this process and how courts have ruled on similar fact patterns in the past, attorneys and parties are likely to know who will win. Cases can be settled or dismissed by the courts before trial, resolving the case. Some reasons cases may still go to trial are if the case has some new element and parties do not have precedent to make predictions or if court rulings have been inconsistent in the past and parties are willing to gamble for a desirable ruling.
In our banana case for example, courts have ruled various ways depending on how brown or rotten the banana is. The idea being that if it is extremely rotten, it must have been on the floor for a long time, making the owner negligent. So maybe we don’t like the amount of money the grocery store offered us and we feel the banana is brown enough to get us what we need. Or, the grocery store thinks it is yellow enough and they can prevail. Consequently, they don’t offer us a settlement because they would rather not pay anything at all. So we go to the jury.
Hopefully this gives you a taste of what we do in Civil Procedure. For me, it is my most difficult class because it is largely memorization. How many days do you have to respond to an interrogatory? Which of the 12 (b) motions are waived after moving? I personally operate better with concepts and theories. But for those for whom memorization comes easy, this class is the favorite.
Finally some concrete rules to follow. None of this Property/Tort law, where every answer to our questions always seems to begin with a “well, that really depends…” and to conclude with “but one could also effectively argue…” However for me, all this nitty-gritty detail definitely makes my head spin. As a result, now as finals approach, I spend a lot of time with my note cards, drilling myself until it sticks.
Questions for Amie? Email law-admissions [at] luc [dot] edu with the subject “Ask Amie” and she will make sure to answer them.