Civil Procedure Commons^™

Stupid Lawyer Tricks: An Essay On Discovery Abuse, Charles M. Yablon

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The article critiques the prevalent approaches to addressing discovery abuse in legal proceedings, arguing that traditional methods focusing on moralizing about civility are ineffective. Instead, it proposes a more direct approach, inspired by parental discipline, where judges should firmly tell lawyers to cease abusive behavior. The author draws on Aristotle's concept of "akrasia" (moral weakness) to explain why lawyers often engage in counterproductive tactics, suggesting that emotional impulses and the pressure to win drive such actions. The article advocates for innovative solutions to deter discovery abuse, emphasizing the need to make such behavior less enjoyable through targeted sanctions and increased …

Class Action Rule Changes: A Midpoint Report, Edward H. Cooper

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This a midpoint progress report of the Reporter on current proposals to amend the class action rule, Rule 23 of the Federal Rules of Civil Procedure. In part, it is one of many calls for help. The proposed amendments have been published for comment. It is important that the rulemakers hear from as many interested observers as possible. One of the pitfalls of the comment process - at least one of the pitfalls that the rulemakers like to believe in - is that there are many observers who believe that the rulemakers have got it right, and do not need …

Rule 23: Challenges To The Rulemaking Process (Symposium: The Institute Of Judicial Administration Research Conference On Class Actions), Edward H. Cooper

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Three decades have elapsed since Rule 23 of the Federal Rules of Civil Procedure last underwent revision. Taking a cue from proposed amendments prepared by the Civil Rules Advisory Committee, Professor Cooper asks whether now is the appropriate time to revise Rule 23. In this Articl e he identifis three potential "big changes" to the Rule. subsantially curtailing class actions; accommodating the needs of mass-tort actions; and recognizing the class as an entity, distinct from Its representatives. After outlining and critiquing the Advisory Committee's draf4 Professor Cooper raises a host of questions about many aspects of Rule 23 and suggests …

Just Deserts And Lenient Prosecutors: The Flawed Case For Real--Offense Sentencing, David Yellen

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No abstract provided.

Interstate Consolidation: A Comparison Of The Ali Project With The Uniform Transfer Of Litigation Act (American Law Institute Complex Litigation Project: A Symposium, In Memoriam Donald Theodore Trautman), Edward H. Cooper

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The Uniform Transfer of Litigation Act (UTLA) was undertaken for purposes simpler than the mass consolidation of multiparty, multiforum litigation. It seeks to create an effective tool that can be used to reduce some of the artificial barriers that tradition has erected around the sovereign separateness of the many different court systems in this country. The fact of separate sovereignty must be recognized, however, and to this end consent of both transferring and receiving courts is required. Within the consent requirement, transfer from the court system of one sovereign to the court system of another can improve on present practices …

Discovery Cost Allocation: Comment On Cooter And Rubinfeld, Edward H. Cooper

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Discovery practice continues to be the single most troubling element of contemporary procedure. To be sure, the system seems to work well in a high proportion of all federal cases. The proportion may seem astonishingly high in relation to the amount of attention devoted to discovery. The discovery problems that occur in a relatively small proportion of the federal caseload, however, impose serious burdens on the parties and the court system. Every proposal that addresses discovery "abuse" deserves serious attention. These comments focus on the discovery abuse portion of the paper by Cooter and Rubinfeld. Questions are posed that may …

Experts, Stories, And Information, Richard O. Lempert

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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 …

The Hourglass And Due Process: The Propriety Of Time Limits On Civil Trials, John E. Rumel

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No abstract provided.

Standards Of Persuasion And The Distinction Between Fact And Law, Richard D. Friedman

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The invitation to respond in these pages to Gary Lawson's very interesting article, Proving the Law, was tempting enough. But what made it irresistible was Professor Lawson's comment that he is "addressing, with a brevity that borders on the irresponsible, subjects well beyond [his] depth." Now, that's the kind of debate I really like. Let me jump right in. A principal question raised by Lawson, which I find quite interesting, may be phrased in general, and purposefully ambiguous, terms as follows: Before an actor treats a proposition as a valid2 proposition of law, what standard of persuasion should that proposition …

Settling For A Judge: A Comment On Clermont And Eisenberg, Samuel R. Gross

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Trial by Jury or Judge: Transcending Empiricism,1 by Kevin Clermont and Theodore Eisenberg, is not only an important article, it is unique. To most Americans, trial means trial by jury. In fact, over half of all federal trials are conducted without juries2 (including 31% of trials in cases in which the parties have the right to choose a jury3), and the proportion of bench trials in state courts is even higher.4 And yet, while there is a large literature on the outcomes of jury trials and the factors that affect them,5 nobody else has systematically compared trials by jury to …

Telling Tales In Court: Trial Procedure And The Story Model, Richard O. Lempert

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There are three ways in which stories may figure prominently at trials. First, litigants may tell stories to jurors. Not only is there some social science evidence that this happens, but trial lawyers have an instinctive sense that this is what they do. Ask a litigator to describe a current case and she is likely to reply, "Our story is ... " Second, jurors may try to make sense of the evidence they receive by fitting it to some story pattern. If so, the process is likely to feed back on itself. That is, jurors are likely to build a …

Post-Trial Motions In Private Antitrust Actions: A Practitioner's Guide, John E. Rumel

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No abstract provided.

Fairness To The Absent Members Of A Defendant Class: A Proposed Revision Of Rule 23, Elizabeth Brandt

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No abstract provided.

Judges Against Juries—Appellate Review Of Federal Civil Jury Verdicts, Eric Schnapper

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This Article seeks to assess the treatment of civil jury verdicts by the federal courts of appeals during the two decades in which the Supreme Court has refused to scrutinize the actions of the circuit courts. Part I summarizes the manner in which the Supreme Court, prior to 1968, aggressively enforced the seventh amendment. Part II, focusing on a one-year period between the fall of 1984 and the fall of 1985, describes the actions of the courts of appeals in resolving the 208 reported cases in which a party challenged the sufficiency of the evidence to support a jury verdict. …

Lawyers And Informal Justice: The Case Of A Public Housing Eviction Board, Richard O. Lempert, Karl Monsma

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When lawyers think of civil procedure they almost invariably think of the rules of civil procedure and the formality they entail. A course in civil procedure focusing almost exclusively on the Federal Rules of Civil Procedure is in most law schools part of the traditional first-year curriculum. Indeed some would argue that it is at the core of that curriculum, for more than any other first-year course it takes students away from familiar moral anchors and instructs them in a set of distinctively legal practices and values. The ability to manipulate the legal system's rules of procedure is the most …

Empirical Studies In Civil Procedure: A Selected Annotated Bibliography, Michael G. Chiorazzi, Barbara A. Baccari, Karen R. Cashion, Christopher R. Hart, Donald M. Nielsen, Charles M. North, William T. O'Neil

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No abstract provided.

Civil Rule 52(A): Rationing And Rationalizing The Resources Of Appellate Review, Edward H. Cooper

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My text is a single and rather simple sentence from Rule 52(a) of the Federal Rules of Civil Procedure: Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. My theme is equally simple.. Rule 52(a) serves a vital institutional role in allocating the responsibility and the power of decision between district courts and the courts of appeals. The "dearly erroneous" standard of appellate review established by the Rule is a …

The American Advantage: The Value Of Inefficient Litigation, Samuel R. Gross

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In a recent article, The German Advantage in Civil Procedure,1 Professor John Langbein claims that the German system of civil litigation is superior to the American; in an earlier article he makes a parallel claim about German criminal procedure.2 Roughly, Professor Langbein argues that by comparison to the German process, American litigation is overly complex, expensive, slow, and unpredictable - in short, inefficient.3 Professor Langbein is not the first and will not be the last to criticize American legal institutions in these terms, but he expresses this criticism particularly well: he is concise and concrete, he describes American practice by …

Mass And Repetitive Litigation In The Federal Courts, Edward H. Cooper

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The topic of "Mass and Repetitive Litigation in the Federal Courts" is even more vast and unwieldy than the complex litigations it brings to mind. The implicit assignment to address the topic by contemplating the events that may occur over the next century is still more daunting. One hundred years bring untellable changes to all of our social and political institutions, judicial and otherwise. Rather than attempt to meet the challenge by uttering bold prophecies of the circumstances that will confront our successors of the future, I will follow an easier course. This paper will select a few illustrations of …

The Twelve-Person, Unanimous Jury: Does It Have More Than History To Recommend It?, Richard O. Lempert

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My focus today will be on the twelve-person unanimous jury and on the contrasts between such juries and six-person juries or twelve-person juries than can return verdicts by ten-two or nine-three votes. Until about fifteen years ago, it appeared that the sixth and seventh amendments required all federal juries to have twelve members who reached unanimous verdicts, and it appeared possible that the Supreme Court would force the states to conform to the federal standards. Instead, the court did almost the opposite. It sanctioned juries as small as size six in state criminal cases and federal civil cases, and it …

Timing As Jurisdiction: Federal Civil Appeals In Context, Edward H. Cooper

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The purpose of these few pages is to show that the calculus of appeal timing is inherently complex. If we are to continue the effort to capture the calculus in rules, the rules will be correspondingly complex. The complex rules will have some virtues; nonetheless, the rules also are likely to generate misunderstanding and may tend to produce undesirable results. It is very tempting to replace the rules with a flexible system that relies largely on discretion to determine the occasions for appeal before a truly final judgment. Whether a flexible system has now become appropriate depends on the same …

What Is This Thing Called Hearsay?, John W. Reed

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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

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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 …

Caveat Emptor And The Judicial Process, John B. Waite

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"There are many issues in the law whose solution has an essentially economic cost. There is one issue in particular, however, of immense and most important economic effect, which has been decided and re-decided, but which, strangely enough, the courts never seem to have considered on the merits of its economic relations and effects....

"...[O]ught one to be permitted safely, if honestly, to intrust possession of goods to others; or should one have power safely, if honestly, to buy goods from those in possession...."

The Reform Of Civil Procedure, Edson R. Sunderland

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Professor Sunderland addresses the pernicious involvement of legislators in legal reform, contrary to the English model. This duty should be left to those who know the Law better than any: "The courts constitute the judicial department of the state, and the judges who preside and the lawyers who practice in them are the selected group of trained men charged with the responsibility for administering the law."

An Inquiry Concerning The Functions Of Procedure In Legal Education, Edson R. Sunderland

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Procedure has always been the bete noire of the law school teacher. No other subject has developed such divergent opinions or such endless debates. None recurs with such periodic frequency and in no field of legal pedagogy has discussion seemed so barren of results. Three different general sessions of the Association of American Law Schools during the last ten years have been devoted largely or wholly to the subject of teaching procedure, and yet no substantial progress seems to have been made toward a standardized scheme of treatment. Individual teachers and schools have their individual views and policies, and they …

The Usefulness Of Intervention As A Remedy In Attachment, Edson R. Sunderland

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While rules of procedure are not saved from the rude hand of the reformer by the "due process" guarantees of our constitutions, they do rest, nevertheless, under the very efficient protection of professional conservatism. Such rules are looked upon by the bench and bar as their own special concern, and innovations in this field must maintain the burden of proving their character before both the lawyer members of the legislature and the lawyers and judges who interpret them in the course of litigation. It would be natural, therefore, to expect that a proposed reform in procedure would have to meet …

Declaratory Judgment - Declaring Rights Under The Guise Of Granting An Injunction, Edson R. Sunderland

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It has often been held that a party may obtain a judicial determination of his rights in respect to legislation alleged to be invalid, by means of an application to a court of equity for an injunction restraining the enforcement of the statute. Ex parte Young (1907) 209 U. S. 123, is the leading case of this type. There, a railroad rate statute was involved, which required compliance by all railroad companies in the state, under the threat of heavy penalties. The railroad actually violated the provisions of the statute after an injunction had been obtained by a stockholder restraining …

Bringing Third Parties Into Actions At Law—Set-Off Against The Assignor, Edson R. Sunderland

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It frequently happens, in an action by an assignee, that the defendant wishes to use as a cross-action a claim against the assignor. This results in no diffiulty unless the amount of the set-off against the assignor is greater than the claim of the plaintiff, or unless the cross-action calls for a specific remedy against the assigner in addition to its defensive effect upon the plaintiff's demand. In each of these cases we have a three-sided controversy. In the first, the set-off operates against the plaintiff to the extent of his claim and against the assignor for the balance. In …

Declaratory Judgments, Ralph W. Aigler

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The Declaratory Judgments Act of Michigan (Act No. 150, P. A. 1919) provided as follows: (Sec. 1) "No action or proceeding in any court of record shall be open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby, and the court may make binding declarations of rights whether any consequential relief is or could be claimed, or not, including the determination, at the instance of anyone claiming to be interested under a deed, will or other written instrument, of any question of construction arising under the instrument and a declaration of the rights …