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1993

Civil Procedure

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Full-Text Articles in Law

Experts, Stories, And Information, Richard O. Lempert Nov 1993

Experts, Stories, And Information, Richard O. Lempert

Articles

In the infancy of the jury trial, there were no witnesses. The jury was self-informing. Members of the jury were drawn from the community. It was expected that they would know, either firsthand or on the basis of what they had heard, the true facts of any disputed incident, and they were gathered together to say what those facts were. Ronald Allen and Joseph Miller, in their insightful paper, see the ideal of the self-informing jury as very much alive today. Allen and Miller tell us that jurors ideally should experience firsthand the factual information needed to arrive at rational …


Jurors' Views Of Civil Lawyers: Implications For Courtroom Communication, Valerie P. Hans, Krista Sweigart Oct 1993

Jurors' Views Of Civil Lawyers: Implications For Courtroom Communication, Valerie P. Hans, Krista Sweigart

Cornell Law Faculty Publications

In courtroom communication, lawyers play a key role. During presentations of opening statements and closing arguments, and through examination and cross-examination of witnesses, lawyers communicate the merits of the case that the jury is to decide. Yet there is surprisingly little systematic information about how jurors perceive lawyers' communication activities. This Article presents new information based upon an interview study with civil jurors about how jurors view and evaluate attorneys and their courtroom behavior. The results of this study are used to make recommendations about enhancing the effectiveness of lawyers' communications.


The Protected Staus Of Opinion Work Product: A Misconduct Exception, Andrea L. Borgford Oct 1993

The Protected Staus Of Opinion Work Product: A Misconduct Exception, Andrea L. Borgford

Washington Law Review

Opinion work product generally has remained immune from discovery, although two increasingly problematic exceptions have developed to counter this immunity. The vague "at-issue" exception permits discovery of documented mental impressions when those mental impressions are central to the subject matter of the suit. The overly narrow "crime-fraud" exception opens opinion work product to discovery when it has been developed in furtherance of a crime or fraud. Because these redundant yet inadequate exceptions share common elements and goals, courts should streamline this important area of discovery law by condensing them into a new misconduct exception.


Due Process In Civil Forfeiture Cases In Washington After Tellevik V. Real Property, Zhihong Pan Oct 1993

Due Process In Civil Forfeiture Cases In Washington After Tellevik V. Real Property, Zhihong Pan

Washington Law Review

In Tellevik v. Real Property, the Washington Supreme Court held that the government's seizure of real property through an ex parte proceeding complied with the due process requirements of the federal Constitution. This Note examines the Tellevik decision in light of United States Supreme Court case law on procedural due process and lower federal court rulings in real property forfeiture cases. It argues that the Tellevik court, in reaching its decision, misapplied federal case law and concludes that due process requires an opportunity for a full hearing before the government can deprive an owner of real property.


Fines Under New Federal Civil Rule 11: The New Monetary Sanctions For The "Stop-And-Think-Again" Rule, Jeffrey A. Parness Sep 1993

Fines Under New Federal Civil Rule 11: The New Monetary Sanctions For The "Stop-And-Think-Again" Rule, Jeffrey A. Parness

BYU Law Review

No abstract provided.


A New Antidote For An Opponent's Pretrial Discovery Misconduct: Treating The Misconduct At Trial As An Admission By Conduct Of The Weakness Of The Opponent's Case, Edward J. Imwinkelried Sep 1993

A New Antidote For An Opponent's Pretrial Discovery Misconduct: Treating The Misconduct At Trial As An Admission By Conduct Of The Weakness Of The Opponent's Case, Edward J. Imwinkelried

BYU Law Review

No abstract provided.


Central Pathology Service Medical Clinic, Inc. V. Superior Court: Statute Limiting Punitive Damages For The Professional Negligence Of Health Care Providers Includes Intentional Torts, Russell A. Gold Aug 1993

Central Pathology Service Medical Clinic, Inc. V. Superior Court: Statute Limiting Punitive Damages For The Professional Negligence Of Health Care Providers Includes Intentional Torts, Russell A. Gold

San Diego Law Review

In the 1992 decision of Central Pathology Service Medical Clinic, Inc. v. Superior Court the California Supreme Court held that every plaintiff injured by a health care provider must comply with section 452.13 of the California Civil Procedure Code, provided the injuries are directly related to the provision of professional services. Section 452.13 requires a pretrial determination of whether a punitive damage claim has a substantial probability of prevailing. This statute also applies to intentional torts, in which the plaintiff is injured by treatment to which the plaintiff did not consent. This Casenote analyzes whether additional procedural obstacles are warranted …


Reverse Removal, Joan E. Steinman Jul 1993

Reverse Removal, Joan E. Steinman

All Faculty Scholarship

Over the past several years, the legal community has given a great deal of thought to the problems created by multiparty, multiclaim, multiforum litigation. A flurry of activity and an outpouring of writing have resulted, including proposals for substantial changes in both substantive and procedural law. Congress legislated a number of the recommendations made by the Federal Courts Study Committee when it passed the Judicial Improvements Act of 1990. Additional legislation concerning the handling of complex cases is pending, and further action by Congress over the next several years is probable, in view of the burden that complex litigation imposes …


Private Justice And The Federal Bench, Lauren K. Robel Jul 1993

Private Justice And The Federal Bench, Lauren K. Robel

Indiana Law Journal

No abstract provided.


Erasing The Law: The Implications Of Settlements Conditioned Upon Vacatur Or Reversal Of Judgments, Michael W. Loudenslager Jun 1993

Erasing The Law: The Implications Of Settlements Conditioned Upon Vacatur Or Reversal Of Judgments, Michael W. Loudenslager

Washington and Lee Law Review

No abstract provided.


Specific Personal Jurisdiction And The "Arise From Or Relate To" Requirement ... What Does It Mean?, Mark M. Maloney Jun 1993

Specific Personal Jurisdiction And The "Arise From Or Relate To" Requirement ... What Does It Mean?, Mark M. Maloney

Washington and Lee Law Review

No abstract provided.


Waiver: A Comprehensive Analysis Of A Consequence Of Inadvertently Producing Documents Protected By The Attorney-Client Privilege, Roberta M. Harding Apr 1993

Waiver: A Comprehensive Analysis Of A Consequence Of Inadvertently Producing Documents Protected By The Attorney-Client Privilege, Roberta M. Harding

Law Faculty Scholarly Articles

The inadvertent production of documents protected by the attorney-client privilege frequently occurs in contemporary litigation. This phenomena becomes more prevalent as the number of cases involving inadvertent document production grows. Unfortunately, given the present modes for resolving the waiver issue that stems from this occurrence, this occurrence could threaten to become the rule rather than the exception. The increased frequency of inadvertent document production is due primarily to more disputes arising out of production of documents demands by the opposing party that emerge as parties request the production of an increasing number of responsive documents. As a result, the sheer …


Tightening Judicial Standards For Granting Foreign Discovery Requests, Ryan J. Earl Mar 1993

Tightening Judicial Standards For Granting Foreign Discovery Requests, Ryan J. Earl

BYU Law Review

No abstract provided.


Luddington V. Indiana Bell Telephone: The 1991 Civil Rights Act Is No Help In Pending Cases, William Wright Banks Jr. Mar 1993

Luddington V. Indiana Bell Telephone: The 1991 Civil Rights Act Is No Help In Pending Cases, William Wright Banks Jr.

Mercer Law Review

In Luddington v. Indiana Bell Telephone, the Seventh Circuit held that the Civil Rights Act of 1991 ("the Act") does not apply to suits pending on the effective date of the Act. In so holding, the court faced conflicts between Supreme Court precedent on the issue of when statutes become effective.

The Supreme Court cases deciding whether statutes are to be applied retroactively have been said to be "'in irreconcilable contradiction.' " In Bradley v. School Board of City of Richmond, the Supreme Court stated that statutes are presumed to apply to cases pending when the statute becomes …


Toward A Liberal Application Of The "Close Of All The Evidence" Requirement Of Rule 50(B) Of The Federal Rules Of Civil Procedure: Embracing Fairness Over Formalism, Rollin A. Ransom Mar 1993

Toward A Liberal Application Of The "Close Of All The Evidence" Requirement Of Rule 50(B) Of The Federal Rules Of Civil Procedure: Embracing Fairness Over Formalism, Rollin A. Ransom

Michigan Law Review

This Note examines the language and purposes of rule 50 to determine if and when a relaxed application of its requirements is appropriate. Part I considers the terms and goal of the rule and concludes that its purpose is to put the party opposing the motion for judgment as a matter of law on notice of the movant's assertion that the evidence is insufficient as a matter of law, and to provide the opposing party an opportunity to "cure." Part II discusses courts' varying application of the requirement that a motion for judgment as a matter of law made at …


Fee Shifting Under The Equal Access To Justice Act -- A Qualified Success, Harold J. Krent Feb 1993

Fee Shifting Under The Equal Access To Justice Act -- A Qualified Success, Harold J. Krent

All Faculty Scholarship

No abstract provided.


Rule 11 Gets Moderate Exercise In Montana: Part Ii, Cynthia Ford Feb 1993

Rule 11 Gets Moderate Exercise In Montana: Part Ii, Cynthia Ford

Faculty Journal Articles & Other Writings

This article provides the results of an informal survey of active practicing lawyers in Montana that the author conducted to gather additional information about the actual operation of Rule 11 in Montana and to sample the perceptions of the bar about the use of Rule 11 and its effect on the practice of law in Montana.


Explaining One-Way Fee Shifting, Harold J. Krent Feb 1993

Explaining One-Way Fee Shifting, Harold J. Krent

All Faculty Scholarship

No abstract provided.


Of Citizen Suits And Citizen Sunstein (With E. Shenkman), Harold J. Krent Feb 1993

Of Citizen Suits And Citizen Sunstein (With E. Shenkman), Harold J. Krent

All Faculty Scholarship

No abstract provided.


Proposed Changes To Discovery Rules In Aid Of "Tort Reform": Has The Case Been Made?, Paul R. Sugarman, Marc G. Perlin Jan 1993

Proposed Changes To Discovery Rules In Aid Of "Tort Reform": Has The Case Been Made?, Paul R. Sugarman, Marc G. Perlin

American University Law Review

No abstract provided.


Finding The New Federal Civil Procedures, Carl W. Tobias Jan 1993

Finding The New Federal Civil Procedures, Carl W. Tobias

Law Faculty Publications

This issue includes a notice informing subscribers that Congress took no action on the package of amendments to the Federal Rules of Civil Procedure which the Supreme Court transmitted on April 22, 1993 and that those amendments became effective on December 1, 1993. Readers might assume that the amendments which are reprinted in Volume 146 of Federal Rules Decisions now have nationwide applicability. This assumption is correct for most of the amendments, such as the significant revisions in Rule 4 governing service and in Rule 11 covering sanctions.

The assumption is not true, however, for some of the amendments, several …


More On Federal Civil Justice Reform In Montana, Carl W. Tobias Jan 1993

More On Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

The Montana Federal District Court has been experimenting with practically all of the procedures that it included in the civil justice expense and delay reduction plan that the district formally promulgated in April 1992 under the Civil Justice Reform Act (CJRA) of 1990. The Article III judges and the magistrate judges and numerous Montana federal court practitioners have now accumulated considerable experience with the procedures instituted, while efforts are presently being undertaken to evaluate most of the procedures. Numerous new development.s regarding national implementation of federal civil justice reform have also been occurring. Important developments that implicate federal civil justice …


Recalibrating The Civil Justice Reform Act, Carl W. Tobias Jan 1993

Recalibrating The Civil Justice Reform Act, Carl W. Tobias

Law Faculty Publications

In 1990, Congress enacted the Civil Justice Reform Act ("CJRA"), a measure which could substantially change the nature of federal civil litigation. One aspect of the CJRA that provides evidence respecting the progress of civil justice reform is the civil justice expense and delay reduction plans issued in late 1991 by the thirty-four federal district courts which the Judicial Conference of the United States designated as Early Implementation District Courts ("EIDCs").

Congress is currently attempting to assess the reforms included in these plans, which constitute the initial significant step in implementing the CJRA. By some oversight, Congress has not invited …


In Defense Of Experimentation With Automatic Disclosure, Carl W. Tobias Jan 1993

In Defense Of Experimentation With Automatic Disclosure, Carl W. Tobias

Law Faculty Publications

It would be presumptuous of me to criticize either view articulated, and even worse form to choose sides, in the recent dispute over the merits of automatic disclosure that graced the pages of this journal. Federal civil procedure cognoscenti need no introduction to these highly respected participants in, and students of, the federal courts. Former Judge Griffin B. Bell rendered distinguished service on the United States Court of Appeals for the Fifth Circuit before President Jimmy Carter appointed him Attorney General. Senior Judge William W Schwarzer compiled an excellent record of service as a judge of the United States District …


Civil Justice Reform In The Fourth Circuit, Carl W. Tobias Jan 1993

Civil Justice Reform In The Fourth Circuit, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Justice Reform Act of 1990 (CJRA) because it was increasingly concerned about litigation and discovery abuse in federal civil cases, growing cost and delay in such suits, and decreasing access to federal courts. The statute requires that all ninety-four federal district courts develop civil justice expense and delay reduction plans by December 1993. Thirty-four districts issued plans by December 1991, and the Judicial Conference of the United States recently designated these districts as Early Implementation District Courts (EIDC).

Three of those EIDCs, the Eastern District of Virginia, the Northern District of West Virginia, and the Southern …


Silver Linings In Federal Civil Justice Reform, Carl W. Tobias Jan 1993

Silver Linings In Federal Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

Many observers, including most of the participants in the civil litigation symposium, have levelled considerable criticism at the Civil Justice Reform Act of 1990 ("CJRA" or "Act") and its implementation. This criticism--which encompasses numerous phenomena, as abstract as constitutional theory and as pragmatic as numerical limitations on interrogatories--emanates from several quarters and ranges across the political spectrum.

Notwithstanding the numerous criticisms that observers have lodged at the statute and its effectuation, a number of which have considerable validity, the federal reform initiative has afforded many advantages. Unfortunately, these benefits have received comparatively little recognition. Because the reform's salutary aspects could …


Rule 11: Montana Must Decide Whether To Adopt Softer Federal Version: Part I, Cynthia Ford Jan 1993

Rule 11: Montana Must Decide Whether To Adopt Softer Federal Version: Part I, Cynthia Ford

Faculty Journal Articles & Other Writings

This article examines the proposed changes to Rule 11 of the Federal Rules of Civil Procedure and if modified, the decision facing Montana regarding whether to incorporate the new federal changes into the state Rule 11.


Proposed Changes To Discovery Rules In Aid Of "Tort Reform": Has The Case Been Made?, Paul R. Sugarman, Marc G. Perlin Jan 1993

Proposed Changes To Discovery Rules In Aid Of "Tort Reform": Has The Case Been Made?, Paul R. Sugarman, Marc G. Perlin

American University Law Review

No abstract provided.


Opt-Outs At The Outlaw Inn: A Report From Montana, Carl W. Tobias Jan 1993

Opt-Outs At The Outlaw Inn: A Report From Montana, Carl W. Tobias

Law Faculty Publications

Report of Prof. Tobias' CLE presentation at the Montana State Bar Association's annual meeting, highlighting the 1993 revisions to the Federal Rules of Civil Procedure and the Civil Justice Reform Act.


Supplemental Jurisdiction In § 1441 Removed Cases: An Unsurveyed Frontier Of Congress’ Handiwork, Joan E. Steinman Jan 1993

Supplemental Jurisdiction In § 1441 Removed Cases: An Unsurveyed Frontier Of Congress’ Handiwork, Joan E. Steinman

All Faculty Scholarship

Late in 1990, Congress passed a statute that confers on the district courts “supplemental jurisdiction” over a universe of claims that the courts otherwise would, or might, be unable to hear. Essentially, 28 U.S.C. § 1367(a) authorizes the courts to exercise jurisdiction over claims that are part of the same case or controversy, under Article III of the Constitution, as a claim within the court's original jurisdiction. It explicitly grants jurisdiction over claims that involve the joinder or intervention of additional parties, thereby authorizing what had been dubbed pendent party jurisdiction and some forms of ancillary jurisdiction. It also codifies …