#11416 - Basics - Civil Procedure

The Basics

FRCP, Relief Available, Burdens of Proof/Persuasion, Statutes of Limitations, Due Process

FRCP

1. What are they? Not a statute. Formed by judges. Applicable to federal courts only, but states have parallel systems which generally mirror federal rules. Formed by committees & passively accepted through Congress.

2. What do they do? regulate pleadings, joinder of parties, discovery, trial, judgment - entry of order that ends the case and the conditions for that, they speak to questions about certain kinds of remedies and when you can get them

Types of Relief

1. Compensatory (damages)

2. Punitive (punishment)

3. Injunction

4. Restitutionary (D pays P for D's gains, not P's losses)

5. Declaratory

6. Provisional (guarantees P relief, before claim is decided. Example: attachment)

BURDENS of proof/persuasion

Burden of pleading = requires only that x assert good faith as a defense in his pleadings

1. Note: usually, state of mind is not something that the party must prove of the other party

   1. Except in: discrimination, fraud. Counter intuitive.

2. Loading the dice argument: (in cases such as Gomez) Make the agency prove that they met the reasonable person standard as a matter of policy (make the agency doing the firing prove that it is the correct thing to do)

3. Ought to be assigned to the person with best access to information (but how can Swierkowicz have access to defendant's state of mind?)

BURDEN OF PROOF: Cleary's Theory:

1. Statute

2. Policy (are we trying to help one side over another - for example in Gomez where, because of the power difference, the defendant should have to have the burden of proof)

3. Fairness (who has access to the information?)

4. Probability (least likely to be right)

Burden of production = requires that x place sufficient evidence supporting all essential elements of claim to allow judge/jury to find she acted in good faith.

Burden of Persuasion = standard that the judge/jury is required to apply in determining whether it believes a factual claim is true.

Usually the party with the burden of pleading, also has the burden of production and persuasion.

Statute of Limitations

Rationale

1. Prevents cases from going 'stale' with too much time - loss of witnesses, documents, memories, etc

2. Allows defendant to move on with life

3. Encourages plaintiff to file promptly

Defense = Laches. Example: p takes too long to seek injunction and that makes it difficult for d to gather material defenses for the suit. Or p knows that d is building a house over plaintiff's boundary line and remains silent until the house is finished and p files suit, laches is a good defense

Due Process

1. 14th Amendment: ...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2. Right to Counsel

   1. Risk of loss of physical liberty = appointment of counsel (this is an argument in Lassiter, but not an explicit holding)

2. No risk of physical liberty = balancing the Elridge Factors: 1)Private interests at stake; 2) Government interests at stake; 3) Risk that procedure will lead to erroneous decision

   1. Lassiter: no counsel required because there was low risk of erroneous decision (issue not complex, no experts required, Plaintiff showed low interest in attending trial, Plaintiff did not respond to petition (waived right to counsel), Plaintiff did not talk to her lawyer before the proceeding, weight of evidence against Plaintiff was sufficiently great.

   2. Dissent: Matthews v Elridge factors always weigh in favor of plaintiff when at risk for eliminating right to children. There is always risk for error because 1) court is intimidating (judge used intimidation against Lassiter), uneducated indigents are more susceptible to intimidation (even if it is not express), 2) indigents will not understand the process & will therefore waive rights without realizing what they are doing; 3) state has access to experts & plaintiffs do not; 4) proceeding has accusatory focus; 5) State has legal representation through county attorney, who has access to public records concerning the family and to social workers who are able to investigate the family and whose purpose is to testify against the family. State counsel is expert in legal standards and efficient techniques and in cross examination to lead to state’s desired result; 6) to respond to petition/court proceedings, it is necessary for the indigent to know how to: identify material issues, develop defenses, gather and present sufficient supporting non-hearsay evidence, conduct cross examination of adverse witnesses

   3. Note: judge could not have helped Lassiter to understand the actual proceedings. This would be biased according to our adversarial system, where judge is supposed to be a passive listener to claims.

3. In civil contempt proceeding which risks incarceration

   1. Turner v Rogers: Turner only required to show that he was unable to make his payments, which is something required by federal law of indigents in proving their need for govt. sponsored counsel anyway. Furthermore, the parent bringing suit is often not represented by counsel. (this is party v party, not state v party). There are other safeguards to protect the violator. Either counsel or safe guards must be made available (safe guards = notice to defendant that ability to pay is what court decision turns on, opportunity at hearing for defendant to respond to questions regarding his financial situation, financial info form to fill out, express finding by court that defendant is able/unable to pay). Turner was neither provided counsel nor safeguards, thus his incarceration was a violation of due process.

      1. The requirement of safeguards: strays away from adversarial model: judge is required to act inquisitively because the state does not want...