Civil Procedure Commons^™

Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, And The Forms, Brooke Coleman

Faculty Articles

The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof - after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act process. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change …

The Confusing Standards For Discretionary Review In Washington And A Proposed Framework For Clarity, Judge Stephen Dwyer

Seattle University Law Review

It has now been more than thirty-five years since the Washington Rules of Appellate Procedure (RAP) became effective in 1976 and replaced all prior rules governing appellate procedure. One significant change that those rules made was to clearly describe and delineate a procedural mechanism for seeking interlocutory review of trial court decisions. The ultimate effect on practitioners is both obvious and unavoidable. Many lawyers, rather than stake out a clear position regarding the applicability of the various considerations governing discretionary review, simply argue that any and every consideration that is even arguably applicable is satisfied by the trial court’s determination. …

This Is Your Sword: Does Plaintiff Prior Conviction Evidence Affect Civil Trial Outcomes, Deirdre Bowen, Kathryn Stanchi

Faculty Articles

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This article suggests that may not always be true. This article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …

A Barrier To Child Welfare Reform: The Supreme Court’S Flexible Approach To Federal Rule Of Civil Procedure 60(B)(5) And Granting Relief To States In Institutional Reform Litigation, Rachel Dunnington

Seattle University Law Review

In a recent decision, Horne v. Flores, the Court demanded a broader and more flexible application of Federal Rule of Civil Procedure (Rule) 60(b)(5). In doing so, the Court opened the door for states to seek relief from court-enforced agreements like consent decrees. This decision undermines the use of institutional reform litigation as a means of fixing the child welfare system and thus deals a further blow to the nation’s most vulnerable citizens. This Note will discuss Horne’s impact on consent decrees stemming from institutional reform litigation in child welfare. Part II will explore the history of Rule 60 as …

What If?: A Study Of Seminal Cases As If Decided In A Twombly/Iqbal Regime, Brooke D. Coleman

Faculty Articles

What if, like in It’s a Wonderful Life, we were able to go back and see what life would be like without a particular legal rule? In other words, what if we could be the George Bailey of law for a day? It is through this “what if” lens that this essay tackles the already well-discussed cases of Bell Atlantic v. Twombly and Ashcroft v. Iqbal. But, unlike the scholarship that has addressed these cases so far, this essay stakes out a completely different methodological approach. Rather than predicting what courts might do with Twombly and Iqbal going …

Lassiter V. Department Of Social Services: Why Is It Such A Lousy Case?, Brooke D. Coleman

Faculty Articles

Every year in Professor Brooke Coleman’s 1L Civil Procedure course, she introduces the subject with a collection of due process cases. The cases force students to confront the tension between procedural efficiency and fairness right out of the gate. It sets a fantastic tone for a course that is essentially all about managing that tension. One particular case, Lassiter v. Department of Social Services, really gets students’ attention. The debate about that case is inevitably a lively one. However, every year when Professor Coleman teaches it, she finds herself rejecting the case and its approach even more. In short, …

Summary Judgment: What We Think We Know Versus What We Ought To Know, Brooke D. Coleman

Faculty Articles

The twenty-fifth anniversary of the “trilogy” of summary judgment cases provides a perfect moment to reflect on what summary judgment means to our civil justice system. However, it goes without saying that summary judgment is not one of those procedural topics that has received little attention. Indeed, it is an area of procedure that has produced heated debates, plenty of press, and volumes of law review articles. So, this is not a little-studied area that only gets discussed on these landmark occasions. This leads to the following inquiry: What more can really be written about a topic that appears to …

The Vanishing Plaintiff, Brooke D. Coleman

Faculty Articles

What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it …

(Re)Forming The Jury: Detection And Disinfection Of Implicit Juror Bias, Anna Roberts

Faculty Articles

This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in recent social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious, bias, but also implicit, or unconscious, bias. The discovery is the Implicit Association Test ("IAT"), an online test that aims to reveal implicit bias.

This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The …

Disparately Seeking Jurors: Disparate Impact And The (Mis)Use Of Batson, Anna Roberts

Faculty Articles

This Article, "Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson," uncovers a stark inequality within Equal Protection jurisprudence. On the 25th Anniversary of the Supreme Court’s decision in Batson v. Kentucky, which established a three-step test for assessing claims of purposeful discrimination in jury selection, I present the first comprehensive research on the application by the lower federal courts of Batson’s disparate impact analysis. The results are striking. Whereas the test was developed to prevent the discriminatory removal of African American jurors from the trials of African Americans, the courts now use disparate impact analysis only to …

Order For The Courts: Reforming The Nollan/Dolan Threshold Inquiry For Exactions, Winfield B. Martin

Seattle University Law Review

For decades prior to 2005, Fifth Amendment regulatory takings jurisprudence languished in a state of confused neglect. Rather than articulating a clearly discernable standard for determining whether a violation of the Takings Clause had occurred, Justices rebuffed government action that seemed to amount to “an out-and-out plan of extortion” and nodded in approval when they deemed the government to have “acted diligently and in good faith” or in furtherance of a “compelling interest.” In trying to parse this imprecise thicket, scholars have characterized the Court’s approach to regulatory takings as a “muddle,” in “disarray,” and “incoherent.” Professor Kent even noted …

Members Only: The Need For Reform In U.S. Intercountry Adoption Policy, Colin Joseph Troy

Seattle University Law Review

In the last five years, Americans have adopted nearly seventy thousand children from foreign countries. The trend of intercountry adoption, “the process by which a married couple or single individual of one country adopts a child from another country,” is representative of the new globalized world, where families are formed and dissolved beyond the bounds of national borders. Although intercountry adoption has enabled many adoptive parents to form loving families and provide caring living environments for countless children, intercountry adoption is not without its share of problems. Corruption and abuse, such as child trafficking, have in many cases marred the …

Protect Me From Myself: Determining Competency To Waive The Right To Counsel During Civil-Commitment Proceedings In Washington State, Jacob J. Stender

Seattle University Law Review

This Comment argues that an unarticulated, heightened standard of competency to waive counsel, under which Washington currently operates, is the ideal standard to address the unique concerns that exist in civil- commitment proceedings. This Comment clarifies the existing law governing the determination of a party’s right to waive counsel, as well as the determination of the validity of such a waiver. This Comment also articulates a comprehensive inquiry standard for trial courts, both within and outside of Washington, to apply when determining the competency of a party and the validity of a waiver. The goal of this express determination standard …

Recovering Access: Rethinking The Structure Of Federal Civil Rulemaking, Brooke Coleman

Faculty Articles

Access to the justice system, which is broadly defined in the article as the opportunity to resolve the merits of a legal claim, is declining. One source of this decline is the Civil Rules. This article examines how the institutional failings of the civil rulemaking process have allowed for the production of rules that diminish access. Rule 1 of the Federal Rules of Civil Procedure provides that the Civil Rules should facilitate the "just, speedy, and inexpensive resolution" of legal claims. While the Civil Rules Committee considers this timeworn mandate when drafting the rules, there is no agreement about how …

D&O Insurance: The Tension Between Cooperating With The Insurance Company And Protecting Privileged Information From Third Party Plaintiffs, Lindsay Fisher

Seattle University Law Review

This comment argues that states should challenge the Real ID under the federalism principles enshrined in the Tenth Amendment, although the Act's driver licensing provisions infringe on both individual and state constitutional rights. A state challenge under the Tenth Amendment is more likely than modern individual rights jurisprudence to succeed in striking down Real ID. Arguing that the federal government impermissibly coerces state action under the Act will better protect both states and individual rights and succeed in having the Act overturned. Part II of this Comment provides a historical context for the enactment of Real ID and describes its …

Great (And Reasonable) Expectations: Fourth Amendment Protection For Attorney-Client Communications, Teri J. Dobbins

Seattle University Law Review

Most motor vehicle crashes are traceable to “some failure of judgment that fully reveals its dangers only when it is too late. That is precisely why they are accidents.” For example, speeding is one of the most prevalent factors contributing to vehicular crashes. Although especially deadly when combined with driver intoxication, speeding is a significant contributing factor in fatal crashes involving sober drivers. Part II of this Article briefly discusses the development of accident insurance. It examines courts' struggles in determining whether an insured's death was an accident for purposes of awarding accidental death benefits, and approaches to resolving this …

The Celotex Initial Burden Standard And An Opportunity To “Revivify” Rule 56, Brooke Coleman

Faculty Articles

This article provides a pragmatic review of the summary judgment process and offers a new methodological approach to critiquing the Federal Rules of Civil Procedure. Using qualitative empirical methods to focus on the defendant's initial burden standard under the watershed case Celotex v. Catrett, the article calls on two new sets of data - a broad survey of published and unpublished district and appellate court opinions and a focused survey of district court cases from a single federal district court - to evaluate the critical responses to the case. The article finds that those who criticize the Celotex initial burden …

Improving The Construction And Litigation Resolution Process: The 2005 Amendments To The Washington Condominium Act Are A Win-Win For Homeowners And Developers, Mark F. O'Donnell, David E. Chawes

Seattle University Law Review

On August 1, 2005, significant amendments to the Washington Condominium Act (WCA) became effective. These amendments were intended to substantially reduce water infiltration in multiunit residential buildings and to simplify the condominium construction dispute resolution process. The heart of the amendments is the implementation of alternative dispute resolution (ADR) procedures, as well as fee-shiftingprovisions which require the non-prevailing party to pay the attorney fees and costs of the prevailing party. A decade of lawsuits brought under the WCA by condominium owners associations against builders and developers, and in turn by builders against subcontractors, alleging defects in the ability of the …

Time Is Not On Your Side: Establishing A Consistent Statute Of Limitations For The Alien Tort Claims Act, David E. Chawes

Seattle University Law Review

This Comment argues that inconsistent application of limitations periods to ATCA claims does not provide sufficient and certain notice to potential parties to allow them to bring a timely claim, thereby potentially denying them an opportunity to receive a fair hearing in federal courts. Absent a U.S. Supreme Court ruling to provide consistent guidance on the applicable ATCA limitations period, Congress should amend the statute to provide a specific ten-year limitations period for most torts. Because both international and U.S. laws provide that murder committed as part of the crime of genocide has no statute of limitations," ATCA claims arising …

Discoverability Of "Deleted" E-Mail: Time For A Closer Examination , Michael Marron

Seattle University Law Review

This Comment will argue that the discovery rules presently require disclosure of an unacceptable amount of information. Part II of this Comment will outline some of e-mail's advantages over other communications media to help explain the rapid rise in e-mail use. Part III will then explain, in layman's terms, how e-mail actually works and discuss some of the reasons why e-mail archives are often considered as likely to contain “smoking gun” messages—the kind of evidence that can drastically affect the outcome of a case. But what is it about e-mail that can make it such a potent evidentiary weapon? The …

Inevitable Discovery In Washington State And The Unreasonable "Reasonableness" Requirement, David Seaver

Seattle University Law Review

This Comment will examine the substantial differences between Division One's current version of inevitable discovery and that adopted by the U.S. Supreme Court in Nix, which is still the only version affirmatively accepted by the Washington Supreme Court. Having distinguished the differences, this Comment ultimately suggests an amalgamation of the most desirable parts of each version of the inevitable discovery exception. The author proposes that the "reasonableness" element demanded by Division One is duplicative and unnecessarily burdensome on the prosecution. The version proposed by this Comment recognizes the potential benefits to the search for truth and to the societal …

Jane Doe, On Behalf Of Herself And All Others Similarly Situated: Radovan Karadzic In United States District Court, Susan L. Ronn

Seattle University Law Review

In perhaps the only method available to respond with power to the horrors of "ethnic cleansing" in Bosnia-Herzegovina, Muslim women turned to a United States court for redress under the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TVPA) The district court denied jurisdiction. This Article examines the opinion of the United States District Court in Doe v. Karadzic and concludes that Jane Doe and all others similarly situated should find redress in the courts of the United States for the brutalities inflicted upon them. Federal courts should not interpret the ATCA and the TVPA so narrowly …

Begging The Federal Question: Removal Jurisdiction In Wrongful Discharge Cases, Michael D. Moberly

Seattle University Law Review

This Article analyzes the federal question jurisdiction issue in the context of state law claims for wrongful discharge in violation of public policy articulated in federal law. Part II of this Article contains a general discussion of the public policy exception to the employment at will rule. Part III discusses removal and federal question jurisdiction. Part IV analyzes cases relevant to the issue of federal question removal jurisdiction in the wrongful discharge context, including the United States Supreme Court's decisions in Merrell Dow Pharmaceuticals v. Thompson and Christianson v. Colt Industries Operating Corp. This Article concludes that a wrongful discharge …

Standard Of Review (State & Federal): A Primer, Kelly Kunsch

Seattle University Law Review

This Article will define standard of review, trace its origins and evolution, and discuss how the appropriate standard of review is determined. A brief discussion of each standard will follow the general discussion. Finally, suggestions will be made for analyzing standard of review problems. The main point is that standards of review are and should be flexible. Courts must recognize this and must look to the policies behind a standard when they select and apply it in a particular case.

Recovered Memories Of Alleged Sexual Abuse: An Analysis Of The Theory Of Repressed Memories Under The Washington Rules Of Evidence, Colette Mulrenan Smith

Seattle University Law Review

This Comment explores whether testimony regarding repressed memories is admissible under Washington rules of evidence. This Comment concludes that the process of repression and accurate recall of memories has not been proven to be a sufficiently reliable and trustworthy phenomenon to justify admission of evidence that abuse occurred.

Rediscovering Discovery: Washington State Physicians Insurance Exchange And Association V. Fisons Corporation, Brian J. Beck

Seattle University Law Review

Section I of this Article will present a model of the adversarial system and argue that the discovery process, although a component of that system, cannot function under the model. Section II lays out the facts of the Fisons case, the arguments presented by each side, and the court's decision. Section III discusses a survey conducted by the Author, which sought to ascertain the decision's impact on members of the Seattle bar. Utilizing survey results and observations regarding the adversarial system, the section then pinpoints some potentially troublesome issues left unresolved by the court and suggests ways to resolve them.

Pro Se Litigants: Application Of A Single Objective Standard Under Frcp 11 To Reduce Frivolous Litigation, Brian L. Holtzclaw

Seattle University Law Review

This Comment addresses the application of Rule 11 sanctions to pro se litigants and argues that based on the language of Rule 11, the concerns expressed in the Advisory Committee Note to Rule 11, and the primary goal of Rule 11 to deter abusive pleadings, a single objective standard should be applied to all parties-attorneys, represented parties, and pro se litigants-to determine whether Rule 11 has been violated. Under this single objective standard, a pro se litigant's lack of legal representation should be considered only in determining the severity of the sanction, not in determining whether Rule 11 has been …

Current Status Of Rule 11 In The Ninth Circuit And Washington State, Fredric C. Tausend, Lisa L. Johnsen

Seattle University Law Review

Admittedly, amended Rule 11 has stirred up a great deal of controversy. The Advisory Committee of which Professor Miller is now a member will be considering a variety of proposed amendments to the Rule. While in Seattle for the 1991 spring meeting of the American Bar Association, Professor Miller expressed his own personal hope that the Rule be left unchanged for now, predicting that the upsurge in its use (and misuse) will follow a bell-shaped curve. The authors concur with the hope that it be left unchanged until the bench and bar have had both additional time to develop the …

An Empirical Examination Of Motions On The Merits, Thomas B. Marvell

Seattle University Law Review

This Article evaluates the Motions on the Merits procedure. Section II outlines the history of commissioners in this country. Section III describes Washington Court of Appeals Division III: its caseload trends, procedures in ordinary appeals, the commissioners' duties, and the MMT history and current procedures. Section IV quantitatively evaluates MMT procedures, exploring their impact on volume of cases decided, delay, backlog, and reversal rates. Section V presents the attorneys' opinions of the MMTs, and Section VI summarizes the results.

Sexual Harassment Cases And The Law Of Evidence: A Proposed Rule, Catherine O'Neill

Faculty Articles

Federal Rule of Evidence 412 eliminates from the jury's consideration during a criminal rape trial evidence of the victim's past sexual experiences in all but a few narrowly drawn circumstances. In enacting Rule 412, Congress' primary purpose was to spare victims of rape the degrading and unwarranted intrusions into intimate details of their private lives that had formerly been common practice in the federal courts. Part I of this comment discusses the background, structure and rationale of Federal Rule of Evidence 412. Part II argues that the justifications for the enactment of Rule 412 in the context of rape also …