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Articles 31 - 60 of 72
Full-Text Articles in Civil Procedure
Adverse Publicity As A Means Of Reducing Judicial Decision-Making Delay: Periodic Disclosure Of Pending Motions, Bench Trials And Cases Under The Civil Justice Reform Act, Charles Gardner Geyh
Adverse Publicity As A Means Of Reducing Judicial Decision-Making Delay: Periodic Disclosure Of Pending Motions, Bench Trials And Cases Under The Civil Justice Reform Act, Charles Gardner Geyh
Cleveland State Law Review
The modest objective of this article is to analyze §476 in light of the purpose it was designed to serve, and to evaluate the performance of that section during the two years that it has been in operation. To do that, it is useful to begin by placing §476 in the larger context of ongoing efforts to address and remedy indefensible decision-making delays. Section II will, therefore, summarize the causes of decision-making delay, dividing them among the defensible and the indefensible, and then review existing mechanisms for alleviating indefensible delay. The point worth underscoring is that while defensible delays-particularly delays …
Special Proceedings In Ohio: What Is The Ohio Supreme Court Doing With The Final Judgment Rule, Donald I. Gitlin
Special Proceedings In Ohio: What Is The Ohio Supreme Court Doing With The Final Judgment Rule, Donald I. Gitlin
Cleveland State Law Review
This note will analyze special proceedings in Ohio insofar as they relate to the appealability of interlocutory orders. Because of the complex and evolving nature of the Ohio Supreme Court's interpretation of special proceedings, this note's analysis must necessarily be largely descriptive of Ohio case law. In addition, this note will highlight differences between Ohio appellate practice and federal practice in order to acquaint the reader with the dramatically different results reached by the two systems. In addition, Part II of this note will examine what is meant by the phrase "substantial right," which appears in the second prong of …
The Application And Misapplication Of Ohio Rule Of Civil Procedure 54(B), Diane S. Leung
The Application And Misapplication Of Ohio Rule Of Civil Procedure 54(B), Diane S. Leung
Cleveland State Law Review
The rules of civil procedure, seemingly straightforward, can be misinterpreted due to attorney inattentiveness. One rule which has suffered and still is suffering from misinterpretation and misapplication is Ohio Rule of Civil Procedure 54(B), judgment upon multiple claims or involving multiple parties, the subject of this note. The following discussion, an analysis of Rule 54(B), will attempt to accomplish several tasks. First, the note will briefly describe the history, nature, and purpose of the rule. Secondly, it will analyze the major aspects and requirements of Rule 54(B). The analysis will emphasize the facets of the rule which have often been …
The 1988 Revision Of 28 U.S.C. 1391(C): Corporate Venue Is Now Equivalent To In Personam Jurisdiction Effects On Civil Actions For Patent Infringement, Thomas W. Adams
The 1988 Revision Of 28 U.S.C. 1391(C): Corporate Venue Is Now Equivalent To In Personam Jurisdiction Effects On Civil Actions For Patent Infringement, Thomas W. Adams
Cleveland State Law Review
Venue in federal cases is controlled by the general venue statute unless there exists an applicable special venue statute that attaches to the particular cause of action under consideration. This note is concerned with the section of the general venue statute applicable to corporate defendants and its interaction with the special venue statute for civil actions in patent infringement cases ("patent venue statute"). As a first step in the discussion of venue, it is necessary to go back in history over 200 years. This note reviews the history of venue, both generally and in cases of patent infringement, the historical …
The 1988 Revision Of 28 U.S.C. 1391(C): Corporate Venue Is Now Equivalent To In Personam Jurisdiction Effects On Civil Actions For Patent Infringement, Thomas W. Adams
The 1988 Revision Of 28 U.S.C. 1391(C): Corporate Venue Is Now Equivalent To In Personam Jurisdiction Effects On Civil Actions For Patent Infringement, Thomas W. Adams
Cleveland State Law Review
Venue in federal cases is controlled by the general venue statute unless there exists an applicable special venue statute that attaches to the particular cause of action under consideration. This note is concerned with the section of the general venue statute applicable to corporate defendants and its interaction with the special venue statute for civil actions in patent infringement cases ("patent venue statute"). As a first step in the discussion of venue, it is necessary to go back in history over 200 years. This note reviews the history of venue, both generally and in cases of patent infringement, the historical …
Suing A State In Federal Court Under A Private Cause Of Action: An Eleventh Amendment Primer, Donald L. Boren
Suing A State In Federal Court Under A Private Cause Of Action: An Eleventh Amendment Primer, Donald L. Boren
Cleveland State Law Review
A major obstacle facing an attorney, whose client is suing a state in federal court under a right created by a federal law, is the restraints placed on the federal court's jurisdiction by the eleventh amendment to the United States Constitution. The purpose of this article is to provide assistance through this wonderland of eleventh amendment jurisprudence. This article examines three major eleventh amendment issues, plus-and perhaps more importantly-methods of avoiding eleventh amendment litigation. Section I of the article examines the historical evidence on whether the amendment was intended to apply to cases in which a citizen of a state …
Addressing The Adversarial Dilemma Of Civil Discovery, Michael E. Wolfson
Addressing The Adversarial Dilemma Of Civil Discovery, Michael E. Wolfson
Cleveland State Law Review
There can be no question that the emergence of modern pretrial discovery has contributed enormously to making the conduct of a lawsuit a more fair, just, and efficient process. But discovery also offers a substantial potential for mischief. Since few civil cases today are actually resolved at trial, trouble in the pretrial phase of litigation signals potentially major problems in the legal system's role as the nation's primary dispute resolution mechanism. It is the purpose of this Article to examine the issue of discovery abuse in light of the fundamental adversarial dilemma of the discovery process and propose a new …
Moving To Dismiss A Civil Rico Action, David J. Howard
Moving To Dismiss A Civil Rico Action, David J. Howard
Cleveland State Law Review
The use and abuse of the Racketeer Influenced and Corrupt Organizations Act ("RICO") has troubled judges and lawyers for some time while providing fertile ground for commentators. The plethora of RICO cases is equaled only by the tremendous proliferation of commentary. This Article, while admittedly contributing to this proliferation, is excusable, however, because its purpose is to facilitate summary disposition of RICO claims by providing a practical guide to achieving early dismissal under Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. It is impossible to set forth all grounds for dismissing every RICO complaint. The scope of …
Stepping On Board The Rule 11 Bandwagon, Roger M. Baron
Stepping On Board The Rule 11 Bandwagon, Roger M. Baron
Cleveland State Law Review
Prior to the 1983 amendments to Rule 11, there was some concern as to whether or not the Federal Rules had adequate provisions to insure the truthfulness of allegations in pleadings and motions. With the 1983 incorporation of an objective standard of reasonableness, subjective good faith was eliminated as a defense. Whether anticipated or not, the federal courts have now become flooded with litigation concerning the new Rule 11. Certain differences do exist among the circuits; however the differences are relatively minor, relating primarily to each circuit's description of the conduct which violates the relevant standards and to the standard …
Being And Nothingness: Commencement And The Application Of Ohio Civil Rules 3(A) And 4(E), J. Patrick Browne
Being And Nothingness: Commencement And The Application Of Ohio Civil Rules 3(A) And 4(E), J. Patrick Browne
Cleveland State Law Review
As a general rule, a civil action comes into existence at the moment of commencement, and it ceases to exist as an action when the court journalizes a final judgment that adjudicates the rights of all of the parties and determines all of the claims involved in the action. Because the action comes into existence with commencement, it is important to define that precise moment in time when the action is deemed to have commenced. That is the task of Civil Rule 3(A), which states: "A civil action is commenced by filing a complaint with the court, if service is …
The Leave To Plead As A Waiver Of The Jurisdictional Defenses, J. Patrick Browne
The Leave To Plead As A Waiver Of The Jurisdictional Defenses, J. Patrick Browne
Cleveland State Law Review
Civil Rule 12(B) includes three defenses which challenge in personam jurisdiction. They are the 12(B)(2) defense of lack of jurisdiction over the person, the 12(B)(4) defense of insufficiency of process, and the 12(B)(5) defense of insufficiency of service of process. Not infrequently, the assertion of any one or more of these defenses is haunted by the ghost of the old "special appearance," and that which makes the ghost rattle its chains is often the defendant's taking a leave to move or plead before presenting these defenses to the court. In such case it is usually said that the taking of …
The Federal Preemption Question - A Federal Question - An Analysis Of Federal Jurisdiction Over Supremacy Clause Issues, A. Mark Segreti Jr.
The Federal Preemption Question - A Federal Question - An Analysis Of Federal Jurisdiction Over Supremacy Clause Issues, A. Mark Segreti Jr.
Cleveland State Law Review
This Article focuses on the issue of simplicity and predictability in analyzing federal question jurisdiction and recommends making federal court jurisdiction, in the area of federal preemption, consistent with logic. Federal question jurisdiction should be based on the source of the controlling substantive law. This approach is more logical, and therefore easier to understand. It is also more certain and therefore more predictable since it bases jurisdiction on the more realistic standard of governing law, rather than on speculation as to which party is the aggressor. This Article is not a recommendation to expand federal court jurisdiction; it is a …
The Significance Of The Signature: A Comment On The Obligations Imposed By Civil Rule 11, J. Patrick Browne
The Significance Of The Signature: A Comment On The Obligations Imposed By Civil Rule 11, J. Patrick Browne
Cleveland State Law Review
Why does Civil Rule 11 require the signature and signature block? The signature block is intended to provide the information needed for the implementation of Rule 5. That rule requires the service of pleadings, motions or other papers on the attorneys for all parties represented by attorneys, and on the parties personally if they are not so represented. The signature block simply provides information with respect to the place where such service may be made. The signature itself, however, is of greater import, and it is the significance of the signature that we shall discuss in the following pages
The Summary Jury Trial, Thomas D. Lambros, Thomas H. Shunk
The Summary Jury Trial, Thomas D. Lambros, Thomas H. Shunk
Cleveland State Law Review
The American judicial system must necessarily rely on a steady flow of dispositions of cases by settlement lest it collapse because of a demand for trials beyond the ability of the courts to try cases. Settlements are achieved through a variety of procedures and techniques, yet many cases result in trials because of the uncertainty about prospective juror perceptions that pervades settlement discussions. Summary trial helps to eliminate this element of uncertainty and, at the same time, provides an additional basis for settlement of cases otherwise committed to trial. This is not to suggest that trial is to be avoided …
The Summary Jury Trial, Thomas D. Lambros, Thomas H. Shunk
The Summary Jury Trial, Thomas D. Lambros, Thomas H. Shunk
Cleveland State Law Review
The American judicial system must necessarily rely on a steady flow of dispositions of cases by settlement lest it collapse because of a demand for trials beyond the ability of the courts to try cases. Settlements are achieved through a variety of procedures and techniques, yet many cases result in trials because of the uncertainty about prospective juror perceptions that pervades settlement discussions. Summary trial helps to eliminate this element of uncertainty and, at the same time, provides an additional basis for settlement of cases otherwise committed to trial. This is not to suggest that trial is to be avoided …
Ohio Rule 8(C) And Related Rules: Some Notes On The Pleading Of Affirmative Defenses, J. Patrick Browne
Ohio Rule 8(C) And Related Rules: Some Notes On The Pleading Of Affirmative Defenses, J. Patrick Browne
Cleveland State Law Review
The adoption of the Ohio Rules of Civil Procedure on July 1, 1970, ushered in the age of "Pleader's Lib" for the plaintiff's attorney. In code days, a pleader had to allege facts which showed a cause of action. Under the rules, however, a statement of claim' need only state the bare operative facts which show that the claimant has a claim for relief, and the complaint cannot be dismissed for failure to state such a claim unless it appears beyond doubt from the face of the pleading that the claimant can prove no set of facts entitling him or …
The Finality Of An Order Granting A Rule 60(B) Motion For Relief From Judgment: Some Footnotes To Gte Automatic Electric, Inc. V. Arc Industries, Inc., J. Patrick Browne
The Finality Of An Order Granting A Rule 60(B) Motion For Relief From Judgment: Some Footnotes To Gte Automatic Electric, Inc. V. Arc Industries, Inc., J. Patrick Browne
Cleveland State Law Review
Is an order granting a Rule 60(B) motion for relief from judgment a final order for the purpose of appeal? In GTE Automatic Electric, Inc. v. ARC Industries, Inc., the Ohio Supreme Court answered the question in the affirmative with respect to default judgments. However, because the court's answer contains some inherent ambiguities, because default judgments comprise only one type of judgment subject to a Rule 60(B) motion for relief from judgment, and because of the variety of relief that may be granted pursuant to such a motion, the question deserves further consideration. This article begins that consideration, examines some …
The Use Of Comparative Law In Teaching American Civil Procedure, Sidney B. Jacoby
The Use Of Comparative Law In Teaching American Civil Procedure, Sidney B. Jacoby
Cleveland State Law Review
The use of comparative law can enhance the teaching of American civil procedure, especially by a comparison of foreign form book material with American forms. In this way, with some basic knowledge of comparative civil procedure, the student will better appreciate our own concepts and will also understand some fundamental principles of the civil procedure of civil law countries when he is confronted with them in private practice
The Meaning Of The Term Trial Within The Ohio Rules Of Civil Procedure, Patrick Carroll
The Meaning Of The Term Trial Within The Ohio Rules Of Civil Procedure, Patrick Carroll
Cleveland State Law Review
The lack of a definition of a trial in the Federal Rules has not posed any serious problems. Unlike the Ohio procedural system, the Federal Rules do not employ the term "trial" to delineate any rights of parties involved in litigation. Thus, there is no pressing need for such a definition in the Federal Rules. Within the Ohio Rules, however, the word "trial "is frequently used to determine the rights of parties. The lack of a workable definition of a trial in the Ohio procedural system has therefore related problems not encountered in the federal courts. 'The first section of …
Class Actions Under Rule 23(B)(2): A Type Of Class Action Which Does Not Require Eisen Notice, Gary L. Eby
Class Actions Under Rule 23(B)(2): A Type Of Class Action Which Does Not Require Eisen Notice, Gary L. Eby
Cleveland State Law Review
This comment will address the subject of class actions under Federal Rule 23(b) (2) and will trace the development of notice requirements, taking note of the split of authority on the issue. The holding and the deceivingly broad language of the Supreme Court's decision in Eisen will also be examined in order to illustrate its lack of effect on the (b) (2) notice requirements that have developed in the lower courts.
The Demise Of The Declaratory Judgment Action As A Device For Testing The Insurer's Duty To Defend, J. Patrick Browne
The Demise Of The Declaratory Judgment Action As A Device For Testing The Insurer's Duty To Defend, J. Patrick Browne
Cleveland State Law Review
When a liability insurer defends claims brought against its insured, its interests frequently come in conflict with those of the insured. Over the years, courts and litigants have attempted to alleviate or eliminate this problem by several methods: providing the insured with independent counsel to represent his interests; a declaratory judgment action to test the insurer's duty to defend; direct actions by the injured claimant against the insurance company; and through the imposition on the insurer of an absolute duty to defend with a reserved right to test coverage at a later date. The second of these four methods the …
Voluntary Dismissals And The Savings Statute: Has Rule 41(A) Changed The Law, J. Patrick Browne
Voluntary Dismissals And The Savings Statute: Has Rule 41(A) Changed The Law, J. Patrick Browne
Cleveland State Law Review
Prior to the adoption of the new Ohio Rules of Civil Procedure, it had been held that a suit voluntarily dismissed could not be refiled under the provisions of the savings statute. Ohio Civil Rule 41(A) replaced the prior Code section providing for voluntary dis- missals and, by its language, suggested that at least one refiling of the suit would be permitted under the savings statute. However, the one reported judicial decision squarely on point at the time of this writing, Brookman v. Northern Trading Co., rejects the apparent purpose of Rule 41 (A) and adheres to the pre-Rule view …
Zahn V. International Paper Co. - The Aggregation Principle And Its Effect On Jurisdiction In Rule 23 (B)(3) Class Actions, Zygmont A. Pines
Zahn V. International Paper Co. - The Aggregation Principle And Its Effect On Jurisdiction In Rule 23 (B)(3) Class Actions, Zygmont A. Pines
Cleveland State Law Review
The course of the present inquiry begins with a consideration of the current obstacles confronting a diversity (b) (3) class action and proceeds toward an analysis of such considerations and the re- sulting ramifications, Special emphasis is placed on the policy aspects of the aggregation doctrine, the jurisdictional amount statute (28 U.S.C. § 1332), and the modern class action device, with specific reference to the problematic condition of the current judicial system.'
Appellate Procedures In Workmen's Compensation Cases, James D. Kendis
Appellate Procedures In Workmen's Compensation Cases, James D. Kendis
Cleveland State Law Review
Workmen's compensation in the state of Ohio dates back to 1911 when the Ohio legislature enacted a voluntary Work- men's Compensation program. The legislation was soon tested in the courts and declared constitutional by the Ohio Supreme Court in the case of State ez rel. Yapel v. Creamer, the court finding that this type of "social" legislation was valid under the state police power. The legislature, in 1912, presented a constitutional amendment to the people of the State of Ohio for the purpose of establishing a formal Workmen's Compensation system which was adopted as Article II, Section 35.2 This section …
Excessive Delay In The Courts: Toward A Continuance Policy Relating To Counsel And Parties, Thomas O. Gorman
Excessive Delay In The Courts: Toward A Continuance Policy Relating To Counsel And Parties, Thomas O. Gorman
Cleveland State Law Review
The maxim "Justice delayed is justice denied" is an expression which is becoming all too meaningful in our courts today. Many of the large metropolitan courts in this country are being strangled by the ever-increasing backlog of cases. ...In most court systems, continuance policies are either non-existent or couched in vague terms such as "good cause shown.' It is the aim of this study to formulate guidelines for a sound continuance policy which will serve to speed the administration of justice without interfering with the high standard of judicial fairness necessary to proper adjudication.
Preserving Objections To In Personam Jurisdiction - Ohio's Persistent Shibboleth, J. Patrick Browne
Preserving Objections To In Personam Jurisdiction - Ohio's Persistent Shibboleth, J. Patrick Browne
Cleveland State Law Review
The scenario is commonplace: Plaintiff causes summons to be served on the defendant. The defendant believes the summons is fatally defective, or the service is faulty, or that, for some reason or another, the court in which the action is brought cannot lawfully obtain jurisdiction over his person. Accordingly, he files a motion to quash and set aside the summons, or a motion to dismiss for want of in personam jurisdiction. As so frequently happens, the court does not quite see the wisdom of defendant's position, and overrules the motion. Usually, the court's journal entry will note that the defendant's …
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.
Motions In Limine, Tom H. Davis
Motions In Limine, Tom H. Davis
Cleveland State Law Review
Defendant's attorney in a tort or personal injury case can fumble, stumble and fall and win. A plaintiff's attorney can try his case perfectly and still lose. Since any charge of prejudicial tactics brought against the plaintiff usually will be more harmful than one brought against the defendant, it is the duty of the plaintiff's attorney to keep the case like "Caesar's wife," if he can.One of the best ways to accomplish this is through a motion in limine. For those who are not familiar with this practice, it is a motion, heard in advance of jury selection, which asks …
Depositions And Power Of Notary To Punish For Contempt In Ohio, Richard W. Schwartz
Depositions And Power Of Notary To Punish For Contempt In Ohio, Richard W. Schwartz
Cleveland State Law Review
The deposition plays an important role in the modern-day practice of law. The enormous backlog of cases in the courts requires preservation of precious testimony during the long wait prior to trial. In addition, the deposition is a valuable tool in evaluating a case, especially during settlement negotiations. Finally, the deposition is a prime means of discovering vital information. The notary public presides at the deposition, and is invested with quasi-judicial powers, including the power to punish for contempt. This paper will briefly survey both the procedural aspects of the deposition and the quasi-judicial power of the notary public.
Statute Of Limitations In Malpractice Actions, Ernest A. Cieslinski
Statute Of Limitations In Malpractice Actions, Ernest A. Cieslinski
Cleveland State Law Review
The ill-treated patient has sought redress for medical malpractice by actions that sound in tort, in contract, or in fraud. As with other actions, the underlying policy of "peace and repose" of all statutes of limitations dictates that these actions be timely. In Ohio, for example, the time limit for an action for malpractice is one year.