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Articles 1111 - 1140 of 1193
Full-Text Articles in Civil Procedure
Attorney's Fees As An Element Of Costs: The Copyright Experience, E. K. Ii
Attorney's Fees As An Element Of Costs: The Copyright Experience, E. K. Ii
Georgia Law Review
The amount of money frequently involved in copyright litigation, especially on the part of the defendant, is trifling. The expense of any litigation is considerable. Unless, therefore, some provision is made for financial protection to a litigant, if successful, it may not pay a party to defend rights, even if valid, a situation opposed to justice.... It is increasingly recognized that the person who forces another to engage counsel either to vindicate, or defend, a right should bear the expense of such engagement and not his successful opponent.
Insurance Questions In Voir Dire, Kenneth S. Kabb
Insurance Questions In Voir Dire, Kenneth S. Kabb
Cleveland State Law Review
The scope of this article includes the voir dire examination in the federal courts, primarily in civil cases. The questions to be considered are: (1) how is the voir dire examination to be conducted; (2) what are the limitations imposed on the trial judge, counsel, and the parties with respect to the manner and conduct of the questioning; (3) what is the allowable scope of questions that may be asked prospective jurors; and (4) what will constitute reversible error, and who has the burden of proof.
James: Civil Procedure, Jon R. Waltz
James: Civil Procedure, Jon R. Waltz
Michigan Law Review
A Review of Civil Procedure by Fleming James, Jr.
Revitalization Of The International Judicial Assistance Procedures Of The United States: Service Of Documents And Takings Of Testimony, Richard F. Gerber
Revitalization Of The International Judicial Assistance Procedures Of The United States: Service Of Documents And Takings Of Testimony, Richard F. Gerber
Michigan Law Review
This comment will examine two aspects of such judicial assistance-service. of documents and taking of testimony-and it will analyze each from the viewpoint of assistance obtained abroad in aid of American litigation as well as assistance rendered within the United States in aid of foreign litigation. It will attempt to survey some of the problems involved in securing performance of these acts, indicate the changes in current practice which are likely to result from the revisions of the Federal Rules of Civil Procedure and the proposed amendments to the Judicial Code, and, last, suggest some additional measures which might promote …
Civil Procedure- Venue-Effect Of Contract Provision Fixing Venue As To Future Litigation, Robert C. Bonges
Civil Procedure- Venue-Effect Of Contract Provision Fixing Venue As To Future Litigation, Robert C. Bonges
Michigan Law Review
Defendants, residents of Harris County, Texas, executed in Harris County a conditional sale contract to purchase a food freezer from plaintiff's assignor. One of the contract provisions was that any suit on the contract was to be tried in Travis County, Texas. Plaintiff subsequently brought an action on the contract in Travis County, and defendants, contrary to their agreement, requested the trial court to transfer the action to a court of proper jurisdiction in Harris County, which was the proper county for suit under the applicable venue statute. In response, plaintiff argued that, since the contract created an obligation performable …
Right To Jury Trial In Ohio Civil Suits, Samuel M. Jones Iii
Right To Jury Trial In Ohio Civil Suits, Samuel M. Jones Iii
Cleveland State Law Review
In most instances the right to a jury trial either clearly does or does not exist. Yet there are some instances where this constitutional right is not clear. However, lawyers, pressed for time and more concerned with substantive issues, fail to argue the issue and thus it is rarely litigated. Those lawyers who are concerned with the jury trial question, for tactical reasons or otherwise, are hampered by a dearth of material providing adequate guides in this area. This article is designed to fill this void.
Procedural Problems Of Class Suits, Joseph J. Simeone
Procedural Problems Of Class Suits, Joseph J. Simeone
Michigan Law Review
The purpose of this article is to discuss numerous aspects of the class device, to discuss the many procedural problems confronting court and counsel, to determine the effectiveness of one type of class suit-the spurious-and in the conclusion, to propose legislation for a new rule independent of the rules regarding class actions, a remedy which would more effectively permit the dispatch of numerous claims arising from similar fact patterns.
A Lecture On Appellate Advocacy, Karl N. Llewellyn
A Lecture On Appellate Advocacy, Karl N. Llewellyn
Addison Harris Lecture
No abstract provided.
Selecting A Jury In Civil Trials, Forrest A. Norman
Selecting A Jury In Civil Trials, Forrest A. Norman
Cleveland State Law Review
It is probably no exaggeration to state that many cases are won or lost on the jury selection. Every lawyer is familiar with cases that were tried through to a jury verdict and following a motion or appeal, were retried to a different jury, with opposite results being reached. In many of these cases the witnesses, the testimony, and all of the facts remain the same-the only difference being in the jury and the result. Thus, the importance of the jury selection cannot be overestimated.
Admission Of Liability, Richard H. Burgess
Admission Of Liability, Richard H. Burgess
Cleveland State Law Review
There is a great amount of resistance to the admission of liability when the slightest defense is available. Many defendants' attorneys would prefer to take the long chance of hoping for an unexpected verdict rather than admit fault and leave only the issue of damages to the jury. Surprisingly, there have actually been cases in which liability was admitted and the jury returned a verdict of no cause of action. Generally speaking, though, an admission of liability will tend to keep the damage award reasonable, but it will take away the slight possibility of an unexpected defendant's verdict.
The Civil Investigative Demand: New Fact-Finding Powers For The Antitrust Division, Richard L. Perry, William Simon
The Civil Investigative Demand: New Fact-Finding Powers For The Antitrust Division, Richard L. Perry, William Simon
Michigan Law Review
The complexity, scope and length of modem antitrust litigation bring to prominence the procedures by which evidence - particularly documentary evidence - is discovered and placed before the courts and administrative agencies. Fact-finding mechanisms now available for ferreting out and prosecuting violations make up an imposing array. These include the grand jury subpoena, the discovery provisions of the Federal Rules of Civil and Criminal Procedure and the subpoena and visitorial powers of certain administrative agencies. The "civil investigative demand," a precomplaint compulsory process, is a new weapon proposed to be added to this arsenal. Few dispute the desirability of new …
Federal Procedure - Venue - Application Of Special Venue Provision To Change Of Venue In Patent Infringement Action, Dean L. Berry S.Ed.
Federal Procedure - Venue - Application Of Special Venue Provision To Change Of Venue In Patent Infringement Action, Dean L. Berry S.Ed.
Michigan Law Review
Petitioner brought a patent infringement action in the northern district of Texas, wherein the alleged infringement occurred and the named defendants resided and had a regular place of business. On motion by the named defendants under 28 U.S.C. §1404(a), authorizing the transfer of certain actions to a district in which the action "might have been brought," the court ordered transfer to the northern district of Illinois where litigation on the same patent was already in progress between the plaintiff and other alleged infringers. Petitioner's motion for mandamus to require the Texas district court to set aside this transfer order was …
Federal Procedure - Jurisdiction - Statutory Change In Jurisdictional Amount And Corporate Citizenship, Philip Belleville
Federal Procedure - Jurisdiction - Statutory Change In Jurisdictional Amount And Corporate Citizenship, Philip Belleville
Michigan Law Review
A recent congressional amendment of federal district court jurisdictional requirements for both diversity of citizenship and federal question litigation has raised the required amount in controversy from $3,000 to $10,000. The trial court has also been given discretion either to deny costs or assess them against the plaintiff if he is finally adjudged entitled to recover less than $10,000, determined without regard to any set-off or counterclaim and exclusive of interest and costs. Further, for purposes of diversity jurisdiction and removal, a corporation is now deemed a citizen "of any State by which it has been incorporated and of the …
Compulsory Joinder Of Parties In Civil Actions, John W. Reed
Compulsory Joinder Of Parties In Civil Actions, John W. Reed
Michigan Law Review
Compulsory joinder cases involving interests in land display one peculiar and important characteristic: there is almost never any need in the state courts to wrestle with the question of whether a person is indispensable as distinguished from necessary. One hastens to add that this attribute of land cases appears to have gone largely unnoticed, but it exists none the less. It arises out of the fact that in a suit involving real property it is never impossible for the court to obtain jurisdiction over all persons interested therein to an extent which will enable the court to adjudicate controversies over …
What Is This Thing Called Hearsay?, John W. Reed
What Is This Thing Called Hearsay?, John W. Reed
Articles
This article is based on an address delivered at the 1956 Advocacy Institute at the University of Michigan. A re-examination of elementary principles, the discussion proceeds on the express assumption that much of the uncertainty and confusion in usa of the hearsay rule is unnecessary because it is due to failure to recall and employ these principles.
Compulsory Joinder Of Parties In Civil Actions, John W. Reed
Compulsory Joinder Of Parties In Civil Actions, John W. Reed
Articles
The plaintiff in a civil cause ordinarily is permitted to select the persons with whom he will litigate. The initial designation of parties to an action is made by the plaintiff, and if he chooses to sue B and not A,' that is ordinarily of no concern to B or to A or to the court. So also where the plaintiff without A as co-plaintiff sues B. Not always, however, is the plaintiff permitted unfettered choice in naming the parties to his lawsuit. On the one hand there are persons whose relationship to the situation in litigation is outside the …
Morgan: Some Problems Of Proof Under The Anglo-American System Of Litigation, Roy R. Ray
Morgan: Some Problems Of Proof Under The Anglo-American System Of Litigation, Roy R. Ray
Michigan Law Review
A Review of Some Problems of Proof Under the Anglo-American System of Litigation. By Edmund Morris Morgan.
Venue-The Need For A Change In The Venue Provisions Of The Federal Employers' Liability Act, S. I. Shuman S.Ed.
Venue-The Need For A Change In The Venue Provisions Of The Federal Employers' Liability Act, S. I. Shuman S.Ed.
Michigan Law Review
In response to the need created by a highly dangerous era of railroad employment, and subsequent to the passage of similar legislation in Europe, there was enacted in 1906 a Federal Employers' Liability Act. The attempted coverage of the first FELA was too broad to withstand the constitutional scrutiny of a five-to-four Supreme Court, and it consequently remained for the Congress of 1908 to enact valid legislation for the protection of the railroad employee. Whether or not: the FELA is the most efficacious solution to the problem of the injured railroad employee continues to be warmly debated, but for the …
Evidence-Privilege-Right Of Third Person To Assert Privilege As To Accident Report Made Confidential By Statute, Richard W. Young S.Ed.
Evidence-Privilege-Right Of Third Person To Assert Privilege As To Accident Report Made Confidential By Statute, Richard W. Young S.Ed.
Michigan Law Review
Plaintiff brought a negligence action for injuries sustained when the automobile in which she was a passenger collided with that operated by the defendant. Defendant questioned a police officer, who had filed the accident report, concerning statements made to him by the driver of the vehicle in which the plaintiff was riding. The trial court permitted this testimony over the plaintiff's objection that these statements were privileged under an Iowa statute purporting to make written accident reports confidential and inadmissible in evidence. On appeal after a verdict was returned in favor of the defendant, held, reversed. The statute can …
Federal Procedure - Appellate Practice - Duty Of The Court Of Appeals To Grant Rehearings En Banc, Raymond R. Trombadore S.Ed.
Federal Procedure - Appellate Practice - Duty Of The Court Of Appeals To Grant Rehearings En Banc, Raymond R. Trombadore S.Ed.
Michigan Law Review
In a suit for accounting, petitioners were denied relief in the district court and a division of the Court of Appeals for the Ninth Circuit affirmed by a two-to-one vote. Petitioners then applied for a rehearing before the court of appeals en bane. With one dissent, the rehearing was denied by the division, and the request that the rehearing be en bane was stricken as "being without authority in law or in the rules or practice of the court.'' Petitioners moved to vacate the order denying the request for a rehearing en bane on the ground that such a request …
Civil Procedure - Judgments - Exceptions To The Rule Of Res Judicata, William A. Bain, Jr., S.Ed.
Civil Procedure - Judgments - Exceptions To The Rule Of Res Judicata, William A. Bain, Jr., S.Ed.
Michigan Law Review
A land contract provided for a conveyance to Pearson from Adams and his wife. The wife was not a party to the contract and refused to execute the deed. Pearson sought specific performance requesting relief of a type not then available in Illinois and when asked if he would accept a deed from Adams alone, he refused. The action was dismissed. Adams then brought this action in ejectment and Pearson counterclaimed requesting a deed executed by Adams alone. The trial court found that the judgment in the previous action was res judicata as to the counterclaim. On appeal, held, …
Civil Procedure-Statute Of Limitations-Possibility Of Service Under Nonresident Motorist Service Act As Preventing Tolling Of Statute, James H. Loprete S.Ed.
Civil Procedure-Statute Of Limitations-Possibility Of Service Under Nonresident Motorist Service Act As Preventing Tolling Of Statute, James H. Loprete S.Ed.
Michigan Law Review
Plaintiffs, while riding as passengers in defendant's automobile, were injured in an accident in Iowa. Two of the four plaintiffs brought suit in Kansas against defendant, a citizen of Kansas, but their suits were dismissed upon the sustaining of demurrers. The four then sued defendant in Iowa, obtaining service upon him under the nonresident motorist service act Defendant pleaded the statute of limitations, and plaintiffs countered with the tolling statute. Issue was raised over the interpretation to be given the word "nonresident" in the tolling statute. Plaintiff contended it was to be given a literal interpretation, that is, that the …
Civil Procedure-Parties-Real Party In Interest When Insurer Has Equitable Interest In Claim, Warren K, Urbom S.Ed.
Civil Procedure-Parties-Real Party In Interest When Insurer Has Equitable Interest In Claim, Warren K, Urbom S.Ed.
Michigan Law Review
Plaintiff sued for damages to his fruit and grocery market which were allegedly caused by the negligence of defendant. Interrogatories were submitted by defendant designed to determine whether or not plaintiff had been paid the full amount of his loss by an insurance company and had assigned his claim to that company. The trial court sustained a motion to strike the interrogatories. On appeal, held, reversed, two judges dissenting. Although a tortfeasor cannot defeat an action by the insured by showing full subrogation of the insurer, he can plead an assignment of the insured's claim to show that the …
Federal Procedure-Change Of Venue-Congestion Of Docket As A Factor Affecting Transfer Under Section 1404(A), Peter Van Domelen S.Ed.
Federal Procedure-Change Of Venue-Congestion Of Docket As A Factor Affecting Transfer Under Section 1404(A), Peter Van Domelen S.Ed.
Michigan Law Review
Plaintiff sued in the United States District Court for the Southern District of New York to recover damages under the Jones Act for illness sustained while he was serving as a seaman on the defendant's steamship. The defendant moved to transfer the action to the United States District Court for the Northern District of California pursuant to Title 28 U.S.C. § 1404(a) which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Evidence introduced showed that …
Federal Procedure-Jurisdiction-No Appeal Allowed Under Rule 54(B) When Separated Claim Not Final, Wilber M. Brucker, Jr. S.Ed.
Federal Procedure-Jurisdiction-No Appeal Allowed Under Rule 54(B) When Separated Claim Not Final, Wilber M. Brucker, Jr. S.Ed.
Michigan Law Review
Flegenheimer sued Manitoba Sugar Co., a Canadian Corporation, in a Vermont state court for breach of an employment contract to gain jurisdiction, Flegenheimer attached parcels of beet pulp which he claimed were the property of the Manitoba Co. After this action was removed to the federal district court, General Mills, Inc., was granted leave to intervene to establish ownership of the beet pulp. The claim of General Mills was dismissed after being heard on the merits. The order dismissing the claim contained a determination that "no just reason for delay" existed, and it therefore directed an "entry of judgment" under …
Federal Procedure-Removal Denied To Lmpleaded Party Under 28 U.S.C. 1441(C), Robert G. Russell S. Ed.
Federal Procedure-Removal Denied To Lmpleaded Party Under 28 U.S.C. 1441(C), Robert G. Russell S. Ed.
Michigan Law Review
Plaintiff sued to recover indebtedness of $7000, to foreclose a chattel mortgage, and to enjoin a local bank from permitting the accounts of the debtor to be withdrawn. Defendant then filed a cross-complaint, as authorized by state procedure, against a third party nonresident garnishee to recover damages for breach of contract and money owed in the sum of $35,000. The cross-defendant removed the case to the United States district court. Held, although the cross-complaint stated a separate and independent cause of action, it could not be the basis of removal since 28 U.S.C. §1441 (c) contemplates only the removal …
Constitutional Law-Due Process-Bill Of Attainder-Loyalty Oaths For City Employee, James I. Huston
Constitutional Law-Due Process-Bill Of Attainder-Loyalty Oaths For City Employee, James I. Huston
Michigan Law Review
In 1948, pursuant to an amendment to its charter, Los Angeles passed an ordinance which provided that all city employees must (1) take an oath that they did not espouse, and had not espoused within five years prior to the effective date of the ordinance, the forceful overthrow of the government; that they were not, nor had they been within the same period, affiliated with a group espousing such aims, and that they would not join any such group while in city employ, and (2) execute an affidavit relating whether they had ever belonged to the Communist Party, and if …
Federal Procedure-Removal Jurisdiction-Jurisdictional Estoppel, Paul M.D. Harrison S.Ed.
Federal Procedure-Removal Jurisdiction-Jurisdictional Estoppel, Paul M.D. Harrison S.Ed.
Michigan Law Review
Respondent sued petitioner, a Florida corporation, the Indiana Lumbermen's Mutual Insurance Company, an Indiana corporation, and Joe Reiss, a citizen of Texas, in a Texas state court. The complaint asked for relief in the alternative for a fire loss suffered by respondent On the joint petition of the two corporate defendants, the case was removed to the federal court under section 1441(c) of the United States Judicial Code. Respondent unsuccessfully moved to remand the case, and, after trial of the case to a jury, a judgment in favor of the respondent was awarded against the petitioner alone. Petitioner's motion to …
Federal Procedure-Mandamus-Use To Prevent Change Of Venue, Richard J. Darger S. Ed.
Federal Procedure-Mandamus-Use To Prevent Change Of Venue, Richard J. Darger S. Ed.
Michigan Law Review
Petitioners instituted a suit in the District Court for the Southern District of California seeking damages for alleged patent infringement. That court ordered the case transferred to the District Court for the District of Delaware on the ground that venue was not properly laid in the Southern District of California. Then petition was made to the Court of Appeals for the Ninth Circuit for mandamus to compel the judge of the lower court to withdraw the order of transfer. Held: petition denied. Mandamus will issue to prevent a transfer of a case to the district court of another circuit …
Federal Procedure-Proper Venue In Patent Infringement Action Against Corporation, Gordon W. Hueschen S.Ed.
Federal Procedure-Proper Venue In Patent Infringement Action Against Corporation, Gordon W. Hueschen S.Ed.
Michigan Law Review
Plaintiffs brought an action for patent infringement against defendant corporation in the Federal District Court for the Southern Division of California, alleging only defendant's "residence" within the district. Defendant moved to dismiss the complaint on the ground that defendant, being a Delaware corporation, did not "reside" within the district, thus rendering the venue defective. Plaintiffs replied that the word "resides," as used in the patent infringement venue section of the code, which states that "any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement …