Boalt Hall Civil Procedure - Mods 1, 2 & 3

Refresher on Pleading

2005-11-21T17:13:00.000-08:00

For those who want to review on motion to dismiss and making a well-pleaded complaint, the Seventh Circuit just reversed a motion to dismiss in Doe v. Smith. The opinion remands the salacious case to the district court to proceed with discovery.

Handout: Practice Questions for 11/22

2005-11-21T15:26:00.000-08:00

If you cannot make class, you can download the preclusion question and the policy question here.

Preclusion Tips

2005-11-17T12:46:00.000-08:00

In the same way that reading the advisory committee notes can help you understand the federal rules, the restatement sections have notes and illustrations that can give you a lot of good examples and help you discover the contours of the doctrines. You can read them by going on to Lexis and doing this:

Research -> Under the Secondary Legal heading, click Restatements -> Judgments -> Click on the rule sections (second one) ->type in the section number you want, and do not click search. Instead click the button sayikng search Table of Contents only. This will limit the results a little better. Scroll down the list and click on the one you want.

You can print for free in the Lexis lab.

I highly recommend this as a way to augment your studies (especially for issue preclusion, section 27).

Handout: Claim Preclusion Rules and Hypos

2005-11-14T23:01:00.000-08:00

If you cannot make it to tomorrow's class, I have posted the handouts here. The goal of the two hypotheticals is to help you refine your ability to spot and decide res judicata issues by providing further illustrations of the doctrine at work. You are of course not responsible for the material in the hypotheticals come finals; they are just there to give your mind some exercise.

Dylan and the Courts

2005-11-03T23:15:00.000-08:00

My blog, my artistic preferences. Bob Dylan has arguably been American's greatest songwriter for the last fifty years, reflecting on many aspects of the nations' experience. However, from my purely non-academic studies, he appears to have a deep suspicion of the justice system. However, he does not appear to trust the popular whim of the jury nor the removed elitism of the judge. Inscrutable as ever, that crafty Dylan. I'll leave you with these pieces to reflect on:

"Drifter's Escape," Bob Dylan

"Oh, help me in my weakness,"
I heard the drifter say,
As they carried him from the courtroom
And were taking him away.
"My trip hasn't been a pleasant one
And my time it isn't long,
And I still do not know
What it was that I've done wrong."

Well, the judge, he cast his robe aside,
A tear came to his eye,
"You fail to understand," he said,
"Why must you even try?"
Outside, the crowd was stirring,
You could hear it from the door.
Inside, the judge was stepping down,
While the jury cried for more.

"Oh, stop that cursed jury,"
Cried the attendant and the nurse,
"The trial was bad enough,
But this is ten times worse."
Just then a bolt of lightning
Struck the courthouse out of shape,
And while ev'rybody knelt to pray
The drifter did escape.

Excerpt from "Hurricane," Bob Dylan

All of Rubin's cards were marked in advance
The trial was a pig-circus, he never had a chance.
The judge made Rubin's witnesses drunkards from the slums
To the white folks who watched he was a revolutionary bum
And to the black folks he was just a crazy nigger.
No one doubted that he pulled the trigger.
And though they could not produce the gun,
The D.A. said he was the one who did the deed
And the all-white jury agreed.

Rubin Carter was falsely tried.
The crime was murder "one," guess who testified?
Bello and Bradley and they both baldly lied
And the newspapers, they all went along for the ride.
How can the life of such a man
Be in the palm of some fool's hand?
To see him obviously framed
Couldn't help but make me feel ashamed to live in a land
Where justice is a game.

Excerpt from "The Death of Emmett Till"

And then to stop the United States of yelling for a trial,
Two brothers they confessed that they had killed poor Emmett Till.
But on the jury there were men who helped the brothers commit this awful crime,
And so this trial was a mockery, but nobody seemed to mind.

I saw the morning papers but I could not bear to see
The smiling brothers walkin' down the courthouse stairs.
For the jury found them innocent and the brothers they went free,
While Emmett's body floats the foam of a Jim Crow southern sea.

Excerpt from "The Lonesome Death of Hattie Carroll"

In the courtroom of honor, the judge pounded his gavel
To show that all's equal and that the courts are on the level
And that the strings in the books ain't pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught 'em
And that the ladder of law has no top and no bottom,
Stared at the person who killed for no reason
Who just happened to be feelin' that way without warnin'.
And he spoke through his cloak, most deep and distinguished,
And handed out strongly, for penalty and repentance,
William Zanzinger with a six-month sentence.
Oh, but you who philosophize disgrace and criticize all fears,
Bury the rag deep in your face
For now's the time for your tears.

The Jury and the Modern Complex Civil Litigation

2005-11-02T15:51:00.000-08:00

The Vioxx cases so far have demonstrated many of the qualities and concerns of the jury in our civil justice system. Consider the following stories. All articles linked to are intended for the educational use of Boalt Hall civil procedure students only (if there are any problems, please contact tfletcher[at]berkeley.edu).

Timeline of Vioxx problems, cases (link)

The New Jersey case:

Jury finds Merck not liable (link)

Juries in New Jersey have the ability to submit questions to the witnesses. This is not normal in American courts (but should it be?) and has had a huge impact on this trial. (link)

The Texas case:

The jury in Texas acted quite differently than the one in New Jersey, and went so far as to tell reporters after the trial that they "sent a message" with their verdict. Pay attention to what happened in voir dire too. (link)

If you didn't get to the talk on Patent Trolls provided by an attorney from Baker Botts this week, the topic of Texas juries again came up. According to the guest speaker, "patent trolls" love filing lawsuits in the Eastern District of Texas. It intimidates international defendants and they feel like they draw a more sympathetic jury in cities like Tyler or Marshall than in San Jose or Boston.

Avoiding federal court:

Federal Vioxx cases were consolidated before a multi-distrcit litigation panel (MDL panel). The federal courts use these to manage enormously complex civil cases to allow one judge to become an expert in one series of facts and handle all the cases arising from them. Obviously, this can ruin a plaintiff's plan to find a friendly forum, and witness the difference between a New Jersey court and a Texas one. (link)

And of course, if you want to know more, go to LexisNexis, go to Research, go to Legal News, choose Legal News (other), and then Legal News, Current. Once there, I rant my searches with variants on vioxx and atleast4(jury) and [other terms I was interested in like texas, questions, etc.]. I'm also excited to chat about these cases [disclosure: I will be working for one of Merck's defense attorneys this coming summer].

Handout: Comments on Outlining and Rule 38, 47, and 48 outlines

2005-11-01T00:57:00.000-08:00

All those goodies are available here.

Also, you can download a commented file where I compare sections from the two outlines available for Prof. Swift's Civ Pro on boalt.org. WHile they make a few nice points, I think I point out a few key errors in both which would make reliance on the outlines provided... poor. Download the comparison here. Here are my comments only in .pdf form. Note that these are just a few comments; these outlines also have other problems.

Watch this space for details on a practice test-taking time later this week.

Ace Up Your Sleeve

2005-10-26T18:46:00.000-07:00

Not much help to you this semester 1Ls, but this tool is a great way of knowing which limited enrollment classes need to be snapped up in round one, and which can wait until later to add. Sometimes, you just can't turn the game theory off. But you can share!

Handout: Rule 56 Fun & Games

2005-10-24T22:52:00.000-07:00

Hey everybody, here's a handout we'll fill in and discuss on Rule 56 in ASP tomorrow.

Sorry about the delay in posting those work product answers below. I'm working on the key, but I'm behind because I spent flyback week flying back places. Admittedly, the World Series has not helped you get the answers faster. Root hard for the White Six if you want it sooner rather than later. Seriously, I plan on posting them soon.

There was also an interesting e-discovery case in the Wall Street Journal today in the Money section. Morgan Stanley is facing criminal contempt charges in Florida for not turning over emails it knew should be produced. The paper also has its regular updates on the Vioxx trial in New Jersey. While not available on-line, these articles are available at Cafe Zeb.

Handout: Rule 26(b)(3) Problems

2005-10-10T16:08:00.000-07:00

We'll be going over these numerous work-product problems in ASP tomorrow. You can download the questions here. I will also post some answers to these questions later this week right here.

Welcome Mod 6!

2005-10-05T20:21:00.000-07:00

Glad to have you passing through the neighborhood. If you guys need anything, or would like to drop into the ASP class on Tuesday from 11:15-12:15, feel free to contact me or just show up!

For Your Information: Applying the Zubulake Standard

2005-10-05T14:59:00.000-07:00

Judge Scheindlin's opinion applying the test is found at 216 F.R.D. 280 (use WestLaw or LEXIS).

The conclusion applies the findings of the factors to get 25 percent:

"The next question is how much of the cost should be shifted. It is beyond cavil that the precise allocation is a matter of judgment and fairness rather than a mathematical consequence of the seven factors discussed above. Nonetheless, the analysis of those factors does inform the exercise of discretion. Because the seven factor test requires that UBS pay the lion's share, the percentage assigned to Zubulake must be less than fifty percent. A share that is too costly may chill the rights of litigants to pursue meritorious claims. However, because the success of this search is somewhat speculative, any cost that fairly can be assigned to Zubulake is appropriate and ensures that UBS's expenses will not be unduly burdensome. A twenty-five percent assignment to Zubulake meets these goals."

Are you satisfied with this analysis?

For Your Information: eDiscovery Materials

2005-10-04T20:29:00.000-07:00

A couple extra resources:

E-Confusion: Lack of rules on keeping, deleting electronic data has lawyers begging for national standards, The Recorder, May 23, 2005 Monday, NEWS; Pg. 1, 1718 words, Brenda Sandburg. You can get this article by going on LEXIS and searching through Legal News: By Jurisdiction: California. The article helpfully recaps the history of e-discovery issues and the federal judiciary's attempts to get a handle on the problem.

Williams v. Sprint/United Management Co., quite likely the latest e-discovery opinion (about six days old), D.Ka.

Handout: Answer to Rule 15 Problem

2005-10-03T22:17:00.000-07:00

Here is a link to the answer to the fourth question on the class handout of Rule 15 questions. This answer includes advice on test writing, and contains everything you need to understand the answer (in case you lost the handout).

For Your Information: Who Will Be The Ninth Justice?

2005-10-03T10:10:00.000-07:00

UPDATE UPDATE: Survey says... Harriet Miers. Curb your enthusiasm folks.

UPDATE: Judge Williams is still trading highest (last sale at 10.0), but the number two is now Judge Luttig (8.1). Rumor (and I by that I mean CNN) says that a nomination is coming on Monday, but it would appear that no decision insider is leaking the information for personal gain. On a side note, if the nominee is Judge Luttig, you can count me among the concerned.

TradeSports is running a futures market on court nominations. The exchange is updated as transactions occur here. The idea is that people with inside knowledge, or the ability to winnow the possibilities down, will buy futures contracts on the nomination and bid the price of that nominee's contract up. RIght now the leading candidate is Judge Karen Williams, but she's still only trading at about 1/10 the payoff on the contract. This indicates that, if the market is actually working, no one knows who the nominee will be... yet.

For Your Information: the Honorable Constance Baker Motley

2005-10-02T08:03:00.000-07:00

The nation's first black woman to serve as a federal judge died yesterday. Her incredible story is a quick, motivating, and amazing read.

ALSO NOTE: Judge Baker made a guest appearance in the litigation arising from the Buffalo Creek disaster; see her appearance (and Gerald Stern's memories of her) on page 261.

For Your Information: Kitzmiller v. Dover Area School District

2005-09-26T15:22:00.000-07:00

Washington Post coverage of the first day of trial here. The plaintiffs called their first expert witness, which we'll learn some about during discovery.

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What got me clued into the case: A Web of Faith, Law, and Evolution in Suit, from the New York Times. I found the last line rather poignant, and applicable to litigation in general: "There's no way to have a winner here," Mr. Rehm said. "The community has already lost, period, by becoming so divided."

And, as if just in time, Boalt Hall shows off it's dog in the fight here. From what I've read of the parties' counsel, Prof. Johnson is not involved, but it's clear that his research laid the foundation for this suit.

I lost my WestLaw password along the way (foolishly, since it's best for getting trial documents like motions and complaints, as Prof. Swift showed), but here are Lexis cites the decisions made so far in the case (note how many motions get decided by written decision by a judge in a complex trial long before the trial starts!):

2005 U.S. Dist. LEXIS 3693 (May 10, 2005) (ruling denying both motion to intervene by parents of children and a motion to dismiss). Note that this motion to dismiss is not "on the merits." Defendants wanted to dismiss for ripeness (now is not the time to hear ths case), lack of standing (the plaintiffs are not the ones to bring this case), and to specifically dismiss the state law claims for being duplicative. All three grounds to dismiss were denied.
2005 U.S. Dist. LEXIS 14998 (July 27, 2005) (denying textbook publisher's motion to intervene, i.e., get in on the trial, because they asked too close to the date of trial as to prejudice all parties).
379 F. Supp. 2d 680; 2005 U.S. Dist. LEXIS 15732 (Aug. 2, 2005) (granting in part and denying in part a motion to quash, i.e., cancel, a subpoena, i.e., a court order to give testimony, arising from a discovery dispute between the parties). As you will learn next week, discovery is meant to run smoothly and not involve running to court and complaining. Of course, put enough on the line and parties will risk angering the judge.
2005 U.S. Dist. LEXIS 19295 (Sept. 7, 2005) (requesting permission to intervene to film the trial; denied). Should trials be televised? What about ones that the entire nation is immensely interested in?

And local media attention for today's beginning trial date:

Science vs. religion disquiets small Pa. town, Philadelphia Inquirer (registration required)
Intelligent design court battle begins, Associated Press.
and an on-line debate between law professors on the issues in the case, here

And, last but not least, all of the papers filed in the case! Complaint, answer, etc. all posted here

Handout: Outlining Rule 15 and the First Hypothetical

2005-09-26T15:09:00.000-07:00

You can download Tuesday's ASP handouts here. First we will outline parts of Rule 15 that you will be studying in class on Wednesday. After that, we will take our first stab at doing a procedural hypothetical problem. It's a little long and a little light on issues, but I think it should be funny. Enjoy!

Handout: Outlining Rule 11 (ASP Handout #4)

2005-09-19T10:09:00.000-07:00

At last! An intricate and very complicated rule! Tuesday's ASP will force us to delve deep into the guts of Rule 11. I've posted the handout here in case you cannot make it to class.

I also want to tell you something I have forgotten the last few weeks. If you would like me to look over any materials you prepare for class - a brief, a rule outline, or, as we reach the end of this unit, an outline of the course material - just email me a copy or drop a copy in my locker (#86). It may take a few days to get back to you (depending on whether you catch me before four interviews or not), but I'll try to assuage any fears and suggest improvements.

Recommendation: Local Due Process

2005-09-12T20:12:00.000-07:00

A classmate submitted this article for me to link to on the blog (link). Apparently, Berkeley residents can be a little zealous about enforcing the law . . . honestly, I am not in the slightest bit surprised.

Enjoy a funny read, and see you all in ASP tomorrow (my last day in "street" clothes for a few weeks)!

Recommendation: The Legal Theory Lexicon

2005-09-10T18:44:00.000-07:00

The Legal Theory Lexicon is a weblog comprised of weekly entries written by Prof. Lawrence Solum of the University of Illinois. The summaries are aimed at first-year students and are designed to clarify the words and theories that get bandied about in law school. Some of the entries are helpful for civil procedure, but the site could also help you with criminal law, constitutional law, torts, etc. If you have some free time, the background reading is really helpful (I found it also helped me pass some time in boring classes without the guilt of solitaire last year).

Prof. Solum also maintains the Legal Theory Blog, a clearinghouse of book recommendations, conference announcements, and, most valuable, working papers recently posted by law professors. A quick scan of the page will often bring you up to speed on where the frontiers of the law are. Enjoy!

Handout: Detecting Elements (ASP Handout #3)

2005-09-10T18:34:00.000-07:00

I have uploaded the handout for Tuesday's class (link).

Professor Swift has been concentrating on developing your ability to detect the "essential elements" of a claim. I thought we could practice this skill by trying to draw the elements out of four very different statutes. I also included one very difficult challenge problem just to give you guys a puzzle.

The second part of the exercise is just more practice at reading the rules of civil procedure. This time, instead of outlining the rules, I have created a little charting exercise (you may have noticed I'm more of a visual learner - for you auditory and kinesthetic learners out there, I'll try and work on something for you too).

Lastly, I have uploaded a copy of a short essay (link) prepared by Professor Orin Kerr at George Washington Law School that he wrote for his 1Ls this year. It's meant as a friendly introduction to reading cases. I think you guys already know most of what's in the essay, but it does clarify and explain a lot of the what and why of the case method of legal education. Prof. Kerr also contributes to a weblog where he comments on both legal (criminal procedure and cyber-crimes) and non-legal (whatever he feels like) issues.

Handout: Pleadings (ASP Handout #2)

2005-09-05T10:46:00.000-07:00

Here's the handout that will be distributed in class on Tuesday. If you won't be coming to ASP, I nevertheless receommend you download and read over the handout. It will provide a helpful introduction to reading the rules of civil procedure. (download)

We will also be watching the Buffalo Creek documentary in tomorrow's ASP class.

Handout: ASP Handout #1

2005-08-30T10:22:00.000-07:00

The handout contains excerpts from Mathews v. Eldridge, in an attempt to clarify the doctrine driving these due process cases. The version handed out in Tuesday's ASP class had some underlining and questions written on it; if you're curious, email me with your locker number for a copy.

For Reference: Hamdan v. Rumsfeld

2005-08-25T14:36:00.000-07:00

Prof. Swift posed the question in the syllabus: What kind of hearing will Hamdi get? The government allowed the enemy combatants to bring their cases before military tribunals. Whether a military tribunal is an appropriate court for the enemy combatant's complaint is address in Hamdan v. Rumsfeld, 2005 U.S. App. LEXIS 14315 (read the case on LEXIS*). You may want to pay close attention to who the judges in the case were . . . Also, if you find the original Hamdi v. Rumsfeld on-line (124 S. Ct. 2633), you can Shepardize it, that is, you can find out which cases have cited to any part of the opinion. This quickly allows you to follow the development of a body of law (in this case, the legal treatment of the enemy combatants).

For additional cases involving enemey combatants, see also In re Guantanamo Detainee Cases, 2005 U.S. App. LEXIS 4651 (D.C. Cir. Mar. 11, 2005) (consolidating detainee cases) [note the judges hearing the case - literally the three most influential D.C. Circuit judges] and Padilla v. Hanft (4th Cir.). Both cases are still pending on their merits. Decisions will likely be released soon and will surely be appealed to the Supreme Court. More information on the prospects of these cases going before the Supreme Court can be found in Jonathon Adler, Looking Ahead to the 2005-2006 Term, available at: http://ssrn.com/abstract=782304 (SSRN is a large database of working papers by faculty nationwide. Most require a subscription, available at school, to download, but this paper is free).

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* If you use Lexis, you can begin accumulating Lexis points [Ed. I bought twenty iTunes and three books to read for fun thanks to the points I got from using Lexis last year - I'm already halfway to another new hardcover novel]. It's a nice little perk to being in law school.

Assignment: ASP on 8/30

2005-08-24T18:51:00.000-07:00

Read Van Harken v. City of Chicago, p. 95 of the casebook.

Pay close attention to how Judge Posner arrives at his conclusions about the level of process required in the case. Attempt to follow the math. We'll go over it on on Tuesday. The case provides another perspective on evaluating due process claims as well as a dynamite introduction to the school of legal thought referred to as Law & Economics (in which Judge Posner sheds the title Judge for something more akin to Pope). It is not exaggeration to refer to Judge Posner as the tenth most important judge in America today after the nine on the Supreme Court. This is not the last time you will see one of his opinions (he shows up twice in the first fifty pages of the Franklin & Rabin Torts book).

If you find yourself turned off by the numbers, pay close attention to the discussion of the right to appeal. And before putting the pitchfork in the man's hand, wait and read his opinion in American Nurses when we get to pleading in a week or so.

More information (though mostly unrelated to substantive legal topics) can be found at The Becker-Posner Blog.

Discussion: Fuentes v. Shevin

2005-08-23T10:11:00.001-07:00

Feel free to post any insights or questions you have as you read the case. [other questions forthcoming]

No Class

2005-08-23T10:10:00.000-07:00

Normally, we will meet on Tuesday from 11:15 to 12: 15 in Room 100. Obviously, this week our session would fall before your first Civ Pro class. Because there would be no material to cover this week, I have cancelled our first session. I look forward to seeing you all in next Tuesday for our first ASP meeting. In the meantime, you will see me in class with you on Wednesday, Thursday, and Friday.

Have a great week!

Civ Pro Blog Policies

2005-08-22T10:22:00.000-07:00

Purpose

This blog is designed to serve as a portal, warehouse, and forum for Modules 1, 2, and 3 of Prof. Swift's Fall 2005 Civil Procedure I class. The blog will serve as a portal by referring students to additional material and insights if they wish to develop a deeper understanding of the class. The blog will serve as a warehouse by storing all of the materials created for the Academic Support Program recitation that I will be running. Handouts provided in class will be posted here. Lastly, the blog will serve as a forum by providing students in the class with a place to discuss and further explore questions posed in class.

Posting

Posting on the blog will remain anonymous as long as the people posting here display respect for their class mates and other forum participants. Of course, posters who wish to identify themselves to make it easier to respond to their comments are encouraged to do so. The forum is intended for students in Mods 1, 2, and 3. However, if other Boalt students or legally-inclined bloggers wish to make comments and contribute to the discussion as well are encouraged to do so.

I reserve the right to modify these rules to keep these discussions civil and focused.

Welcome

2005-08-15T19:37:00.000-07:00

I'm looking forward to next week's first Civil Procedure class! In the meantime, can you believe I got civpro.blogspot.com? I was shocked.