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NO PLAGERISM!!!– NONE THERE IS A DOCUMENT ATTACHED FOLLOW IT!! ITS IN THE WORD DOC. QUESTIONS:How should we regard the interest of rule of law, due process, and civil justice when rules of civil procedures restrict or disallow otherwise meritorious lawsuits?What general principles and considerations do you think should inform our evaluation of the propriety, desirability, or legitimacy of rule of civil procedure that regulate the flow of civil litigation?Do these rules promote or thwart the pursuit of justice in the American “Justice System’?If not PROVIDE EXAMPLES!!You will want to consider what you mean by terms like “due process” and “justice”EXPLAIN YOUR POSSITION AND YOUR REASONS
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NO PLAGERISM!!!—YOU NEED TO BE STRAIGHT FORWARD- NO VAUGENESS- IF YOU SAY
SOMETHING EXPLAIN IT
YOU NEED TO ANSWER ALL OF THE QUESTIONS!!
FOLLOW ALL OF THE INSTRUCTIONS
I will attach another document with all of the notes from the class, please READ ALL OF it.
CITE everything!! In MLA format
It needs to be 1,000 words no more no less
Before you begin the this assignment, you will want to identify some of the rules of civil
procedure that regulates the flow or civil litigation
QUESTIONS:
o How should we regard the interest of rule of law, due process, and civil justice when
rules of civil procedures restrict or disallow otherwise meritorious lawsuits?
o What general principles and considerations do you think should inform our evaluation of
the propriety, desirability, or legitimacy of rule of civil procedure that regulate the flow
of civil litigation?
o Do these rules promote or thwart the pursuit of justice in the American “Justice
System’?
▪ If not PROVIDE EXAMPLES!!
o You will want to consider what you mean by terms like “due process” and “justice”
o EXPLAIN YOUR POSSITION AND YOUR REASONS
o
January 22, 2019





Read the civil action book- will get an assignment within a week or two
Do the Autobiographical paper thing
Adversarial Legal System
o In this confrontation, the accuser always has the burden of proof
o Concerns about the Adversarial Legal System:
▪ Inequalities can change the outcome. Better lawyer
▪ The outcome of the case changed based on the lawyer not on the
information
▪ We should be concerned about this
▪ In the criminal side we offer a lawyer
▪ We also worry that in the contest, that the pursue of winning will make us
do anything in order to win
• People lying on the stand
• Obstructing justice
Accusatorial System:
o The burden of proof is on the accuser
▪ Presumption of innocence for the accused
o Very similar to the adversarial
o Criminal side of the law
▪ The accused has the right to remain silent
▪ Because the accuser has the burden of proof so you can’t force the accused
to testify because they don’t have the burden of proof
The Decision to File a Lawsuit
o Is this case a real controversy?
o They won’t decide on a hypothetical
o I there a legal cause of action for this grievance? Does the law provide relief?
▪ Not all grievances apply
▪ Ex. If someone tells you they will love you forever
• Doesn’t mean that there is a basis for a lawsuit
• The hurt will not count
▪ Ex. If he is our boss, poking you, drop ten
• If he is a marine member its okay – no limitation
• If you are in an office then you can sue him- limitation
▪ Sovereign immunity• You wouldn’t be able to sue the government
• Some of these immunities are no longer immunity
o What are the probabilities of winning a lawsuit?
▪ If you leave the country.
▪ Can you produce the witnesses?



What if you witness has had 10 perjuries?
• He might be telling the truth but it doesn’t matter
▪ Can the court exercise jurisdiction over the defendant?
o What are the cost (time, money, effort) and the benefits of filing a lawsuit? Are
there other means of redress? Does the defendant have the means to pay a
judgment?
▪ Sometimes the $ isn’t worth it
▪ What kind of reputation would you have?
▪ Threshold issues, that you will have to face if you are going through a
lawsuit
o Does the person making the accusation has legal standing to bring this lawsuit?
▪ Who can initiate a law suit?
▪ The brother of the person in the accident can’t sue the driver
▪ Looking for the person who was impacted by the harm
▪ The adversarial system- we are putting responsibility on those who has the
greatest stake
▪ This is why the brother cannot sue- he doesn’t have the best interest at
heart to gather the evidence
Standing to sue
o Who may initiate or file a lawsuit?
▪ To file a lawsuit, a plaintiff must have legal standing to sue
▪ A plaintiff has standing only if he or she can demonstrate a concrete stake
in the outcome of the controversy (a legally sufficient personal interest in
the dispute. (directly and significantly injured or harmed)
▪ You can sue someone if they kill your wife on a car accident- on wrongful
death
o What is the event that officially start a lawsuit?
▪ Filing the complaint- you take this complaint to the court house
• Then comes the summons coming from the court
• This summons will be for the accused
▪ Plaintiff files a complaint- the accuser
Filing a lawsuit
o Selecting a court with jurisdiction to hear and decide the dispute
o Filling a complaint
▪ Facts- general statement
▪ Damages
• What are the damages?
▪ Prayer for relief
• What do you want the court to do about it?
o Summons and Service of Process






It is of constitutional importance- Due process aspect
You need notice to have due process
If you don’t bring the summon then you don’t have due process
Service of process- delivering papers / you got served
If you don’t get served- if you don’t receive a summon
• If it fails then the defendant loses
• Basketball game- team doesn’t show up the other one wins
o Calls for the defendant to answer the complaint
▪ The “Answer”
▪ Can admit something but denies others
▪ If the party admits to something then you do bring it to court
o Combination of the complaint and the answer is called the pleadings
The Road to Trial
o Pleadings: the alternate and opposing written statements by which the litigants
first set the case before the court
▪ Complaint (plaintiff)
▪ Answer (defendant)
▪ This can go on multiple rounds while they try to figure out what it is they
are suing for
o Motion activity- asking for something from the other party
▪ You can make a motion to dismiss the case because it doesn’t have
jurisdiction
▪ Quash- void the summon on the grounds that it was improperly served
▪ A motion for a bill of particular- a motion to make more definite (in the
present)
• You know you are being sued you just don’t understand the
writing on it.
o Discovery: the process by which opposing parties to a lawsuit secure relevant
information regarding the pending action, a process engaged in after completion
of the pleadings and prior to trial
▪ We want relevant information in this pending lawsuit
▪ Objective- if all parties agrees on the information, then they can maybe
prevent going to court
▪ Provides a number of tools
• Interrogatories- one party asks of the other party, questions that
must be answered in writing under oath.
• Deposition- tool by which one of the parties gets crossed
exanimated. Securing information
• Document Request
• Physical and or mental examination
• Subpoena- enforces the tools
o Pretrial conference
▪ Coming together as parties- attorney and judge
▪ SOME Judges prefer that the client is not there
• Why? Because it might inflict on the resolution
▪ It’s the last stop before we go to trial
▪ There might be more than one
▪ Pre-trails can compromise a judges neutrality
• Example- judge might not think you case is worth the amount you
are asking, creates a bias
▪ Issues
• The judge is going to ask of the witnesses you are calling
• Any outstanding conflict over the admissibility of evidence
• Judge might ask if they are willing to stipulate
o it doesn’t need to be discusses at trial
o no need for evidence if they agree
o tries to encourage a settlement
• When we settle we don’t truly have a due process
o We are skipping the full mature of due process
▪ Lastly, they will set a date for the trial
▪ Settling after the jury has already come up with their answer
• Why? Because the party that lost could threaten to appeal which
will take years
o Summary judgment
▪ If based on the pleading but especially on the discovery is it probably that
the parties are in agreement with facts then you don’t need a trial
▪ Parties agree on material facts, so the judge will make a decision for them
▪ But parties don’t need to agree for a summary judgment
o Materiality- SIDE NOTE
▪ Evidentiary term
▪ It’s in the same realm of relevant
▪ Something is relevant if it has the tendency to proof or disprove a matter
in the dispute
▪ Everything that is relevant is material but not everything that is material is
relevant???- ASK
▪ Material is relevant but it goes to something really relevant in the case
▪ Perjury- Lying under oath about material facts, its something that is
central to an issue
• You can lie about your age if it’s not relevant to the case


BUT if the age is dependent on the case such as sexual assault of a
minor of the age of 17 saying she or he is 18 then it is perjury
The Trial
o 1) Jury selection
▪ Jury selection most important aspect
▪ Sometimes you don’t have a jury
▪ 7th amendment- it needs to be more than $20
▪ They changed it to a
▪ Voir dire – asking questions to the potential jurors
▪ Strike for cause- Explain why you don’t want them in jury- family
members
• They have a thing setup
▪ Peremptory challenges- trike without having to explain/ without cause
• It cannot be race or gender
• Its contradictory!
▪ They take an oath• Like they became public officials
▪ Double jeopardy kicks in?
o 2) Opening Statements
▪ Accuser- plaintiff goes first- they have the burden of proof
▪ Then goes the defendant
▪ It is not an occasion to introduce evidence
▪ How they intend to prove their positions/ how they think the case will
happen
o 3) Plaintiffs case
▪ Witnesses
▪ Plaintiff puts on their case first
▪ Hearsay- adequate statement offered for the truth of the matter
• You aren’t using it for the truth of the matter you are using it to
challenge your credibility
▪ Sometimes but not always once the plaintiff rest, the defense will make a
motion for directed verdict
• They are asking the jury to come up with a verdict
• This kind of cuts the jury out of the process
• But it’s not really the jury’s verdict it’s the judges’ choice- fiction
that the jury is playing along
• When is it appropriate?
o After the just heard the plaintiffs case- evidence
o What the defense is saying- they haven’t had their burden
of proof/ the jury will go with me
o
o
o
o
o
o
o
o
o If in the judges mind there is no why a reasonable jury can
go with the plaintiff/ then we don’t need to hear the
defenses case
o They judge should give the benefit of evidence
interpretation to the plaintiff
• If DENIED- it’s the defendants case
4) Defendants case
5) Plaintiffs Rebuttals
▪ you can’t bring new evidence
6) Defendant’s Rejoinder
▪ Motions for directed verdict
▪ You can make another motion for directed verdict AGAIN here
7) Closing argument
▪ opportunity for the attorneys to talk about the case
▪ NO new evidence
▪ To tell the jury what they think they should see in the case
This can keep going for years
8) Jury Instructions
▪ there are usually 12 jurors or a 6 person jury
▪ the judge will instruct them on what the law
▪ they can go into detail- they can explain the weight of the evidence
▪ you have to deliberate based on the evidence presented in court
9) Retire for deliberation• sequestered rarely- held apart from society
▪ historically juries always have to an agreement unanimously
• many state have changed the unanimity 9/3 or 10/2
10) Jury verdict
▪ a) Hung jury- unable to reach a verdict
• If they don’t reach a verdict they need to start the trial al over again
▪ b) General verdict – Jury applies the law to the facts
• they don’t explain why they voted
• they just say who they voted for
• they tend to be the most common
▪ c) General verdict with interrogatory
• Questions are included
• The judge gives a set of questions to the jury that they are to
answer
• You have a normal verdict but now have answered questions
• There can be inconstancies
o Vote for plaintiff but answered in a way that is in favor
with the defendant
o Do we hold the company liable? Yes
o Was the delivery person in scope of their employment? No
o ^^^ this is a contradiction
• the plaintiff or defendant can ask to do the questions
• it’s at the judge’s discretion
▪ d) Special verdict
• The only thing given to the jury are questions/ interrogatories
• The only thing they need to do is to answer these questions
• They the Factual questions and they bring them to judge and the
judge will decide, he or she will make the verdict
▪ Sometimes- one of the parties will ask the judge to XX and this means that
they ask each jury one by one “is this your verdict?”
o 11) Post-trial motions
▪ one or both of the parties
▪ most interesting- jnov
• judgment notwithstanding the verdict
• motion made by the losing side
• you are asking the judge- even if you give the benefit of the doubt
to everyone there is no way a reasonably jury wouldn’t have voted
for the opposing party
• sounds like a motion for a directed verdict
▪ you can make so many different motions
▪ motion for a new trial
• we want decision to be made and to be final
• there is always intention for finality
• efficiency
• judge can make this- calling himself for some serious errors that
they have made
• evidence brought out- maybe someone didn’t show some aspect
• maybe jury tampering
• juror has engaged in misconduct
▪ how much time do you have?
• What If you find out 5 years later that there was jury tampering?
• There is a short amount of time to file a post-trial motion
• If not we would have cases open forever

o 12) Judgment-









judge to enter judgment
it’s the final determination
as an action taken upon a verdict after deliberation
default (they didn’t come to court) – to judgment
motion for directed verdict- to judgment
there are ways of completing service of process that might not include the
defendant
• they are not preferred but you can
▪ there may or may not be motions but we will always have judgment and
there will always be execution on the judgment
• garnish wages if you don’t pay
• put a lean on their property
o 13) Appeals
▪ might happen might not happen
▪ it might take years and years

Post- trial activity
o Motions
▪ Judgment non obstante veredicto (JNOV)
▪ Motion for relief from judgment
▪ Motion for new trial
o Judgment and Execution
o Appeals
▪ Errors of law that were made on trial- this is why we appeal
NOTE: keep in mind for the book!
o In a very general sense you allow people to appeal errors of law
o But the ask you to suggest where it was? It is when it says “objection”
o You have to know were you said “objection”
o If you don’t say objection then the error of law was made it will be extremely
hard to have an appeal
o Sarcasm matter in court- you can’t see if you are reading
Due process of law
o We automatically think of the criminal justice system
o We think of Miranda rights
o We usually think of due process of law in connection with the criminal justice
system. Why?
▪ We think of it as a constitutional right
▪ Why? is because there is a built-in inequality between the accuser and the
accused
• The accuser government has the upper hand

o
o
o
o
o
o
The criminal justice system pits the individual defendant against
the powerful state and due process provides a measure of fairness
and balance in that confrontation between two unequal parties
• What makes it’s something that we need to be attentive to?
o Argensergon v. state
▪ Misdemeanor- they wanted to apply the things from
a more serious case
▪ We really ignore more due process when it is a
misdemeanor and that can be a problem
▪ Is due process an essential feature of the civil justice system why or why
not?
• If the state somehow implicated then it is an essential feature of the
process
• State in a civil case- THEY are the actor they are the judge
The state creates and maintains the judicial system with certain coercive powers,
as a forum for dispute resolution
• Coercive powers- property, if you don’t pay the amount of money
there will be repercussions
▪ Judges who are state actors preside over trials and the judicial system
▪ Lawyers not only represent their clients but they also serve as “officers of
the court”
• Feducheri duties to their client- lawyers
• Lawyers have an obligation to the state as well as them
Judges/ courts enforce judgments
Defendants are subject to service of process
▪ Serving someone▪ Defendants and witnesses are summoned to judicial proceedings
Civil contempt- if a witness refuses to show up
Jurors are quasi-public officials (Sworn- in)
▪ Empaneled- they can be considered public servants
▪ State is implicated in a civil case through the jury
When is someone entitled to due process of law?
▪ When the state uses its position in ways that may be adverse to your
interest
• 1) Falta
• 2)Where that action can be adverse to that interest
▪ 1) One is entitled to due process whenever the law or the power (or
processes) of the state are exercised adverse to one’s interest. What
interest?
• life, liberty and property – 5th and 14th amendment
o 14th- state and it subdivision
o 5th – no person should be deprived
• LIBERTY- Civil commitment- mental health issue, not a criminal
matter
o Property is forfeited
• Property- will be used more in civil case
▪ 2) There can be no criminal punishment or civil liability without the
prescribed process of law. That is to say that the law must follow defined,
predetermined rules or processes in the course of ????
o What do we mean by due process of law? What process is due in a legal system
committed to due process?
▪ Three key components
• 1) Notice
o Due process requires that there be adequate advance
specification of what the law requires before the alw can be
applied adverse to one’s interest
▪ Service of process- so important, if you don’t do it
right the case can be dismissed
▪ If you don’t do it right the case can be dismissed
▪ All about ensuring that the defendant is aware that
they are being sued
▪ Expresses this twice- it prohibits EXPO FACTO
law
• Law that is adopted after the law had been
created?
• ASK
• Deprives the person of notice
• 2) Hearingo Due process requires than an individual be afforded the
opportunity to be heard in one’s defense before an impartial
tribunal
o Right to be heard in a setting that strike us as a fair
o Public trial, speedy trial, fair trial
▪ you can have a hearing that is so speedy that it
deprives both parties to adequately prepare
o Example- Roger Stone, he was arrested last week
▪ The
o Right to confront your accuser
o The US constitution , in article 3 amend. 5-7 spells out not
only the right o a hearing but also the mechanisms


specifically designed to promote a fair and accurate hearing
before an impartial tribunal.
▪ Separation of powers between judge and jury,
between plaintiff and defendant
▪ Right to confrontation
▪ Cross examination
o Something that we don’t have in the constitution- free
lawyer
• 3) Legal equality
o Due process requires that laws be applied in like manner to
people in like situations (this is designs to control
discretion and invidious discrimination)
o Jury selection in a civil case- important
Hamilton- Paper 78- the Federalism- “Least dangerous branch”
o “The judiciary is beyond comparison the weakest of the three departments of
power”
o “because it will be least in a capacity to annoy or injure them.”
o “Has no influence over the sword or the purse, no direction either of the strength
or of the wealth of the society”
o Assumes that every actor will act accordingly- he doesn’t anticipate that congress
is very happy …
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