Civil Procedure Commons^™

The Doctrine Of Judicial Estoppel, Steve R. Johnson

Scholarly Publications

The doctrine of judicial estoppel is not on some lawyers’ radar screens. That’s regrettable. Not anticipating application of the rule, a person may make a claim that can hurt him or her in the long run. Or, unaware of the rule, a party may fail to assert a potentially successful defense. Or, having only a very general awareness of the rule, an attorney may miss subtleties or forum variations that are the difference between winning and losing.

This article has three parts. Part I describes the doctrine of judicial estoppel, emphasizing its purposes. Part II explores the recent judicial estoppel …

Introduction To The Online Colorado Litigator's Handbook, Robert S. Anderson

Sturm College of Law: Faculty Scholarship

The Litigator's Handbook includes surveys of district court judges throughout the state with detailed questions of each judge's preferences and proscriptions for practice and procedure; answers to some questions that attorneys want to know but may be afraid to ask; and commentary that indicates the court's general level of receptiveness to particular types of requests.

Apologies And Legal Settlement: An Empirical Examination, Jennifer K. Robbennolt

Michigan Law Review

It is often said that U.S. legal culture discourages apologies. Defendants, defense counsel, and insurers worry that statements of apology will be admissible at trial and will be interpreted by jurors and judges as admissions of responsibility. In recent years, however, several legal commentators have suggested that disputants in civil lawsuits should be encouraged to apologize to opposing parties. They claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that are intended to encourage and protect apologies by making them inadmissible. In addition, some commentators argue that defendants might …

Who Can Defend A Federal Regulation? The Ninth Circuit Misapplied Rule 24 By Denying Intervention Of Right In Kootenai Tribe Of Idaho V. Veneman, Stephanie D. Matheny

Washington Law Review

In Kootenai Tribe of Idaho v. Veneman, the United States Court of Appeals for the Ninth Circuit misapplied Rule 24 of the Federal Rules of Civil Procedure by denying intervention of right to organizations that had protectable interests in the adoption and implementation of the Roadless Rule. The court based its decision to deny intervention of right on its federal defendant rule, which bars intervention of right by parties other than the federal government to defend a challenge brought under the National Environmental Policy Act (NEPA). The Kootenai decision extended the reach of the federal defendant rule to include …

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …

In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

For Owen M. Fiss: Some Reflections On The Triumph And The Death Of Adjudication, Judith Resnik

University of Miami Law Review

No abstract provided.

The Indulgence Of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers, Joel Andersen

Michigan Law Review

Large institutions such as banks, franchisers, international companies, and lessors distrust juries' ability to properly resolve disputes and award reasonable damages. As a result, these and other actors have attempted to limit juries' potential influence on the contracts to which they are parties. They have done so through contractual jury trial waiver clauses in these agreements. The Seventh Amendment to the Constitution guarantees the jury trial right. Whether the right is determined to exist in an individual instance is a matter of federal common law, which merely preserves the jury trial right as it existed when the Amendment was adopted …

Summary Of Maki V. Chong, 119 Nev. Adv. Op. No. 46, Hilary Barrett

Nevada Supreme Court Summaries

Appeal from a district court order applying the statutory homestead exemption to a debtor’s real property.

Empirical Research And Civil Jury Reform, Valerie P. Hans, Stephanie Albertson

Cornell Law Faculty Publications

In January 2003, President George W. Bush invoked the supposed failings of the civil jury as the rationale for sweeping changes to the civil justice system. In a speech given at the University of Scranton, in Pennsylvania, a state where skyrocketing costs of medical malpractice insurance had created a political crisis, President Bush said, "Excessive jury awards will continue to drive up insurance costs, will put good doctors out of Scranton, Pa." Among the changes he proposed were a decrease in the time that patients would have to sue their doctors, a national cap on pain and suffering awards at …

5th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2003, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Memorandum Of Argument, Supreme Court Of Canada, In Re James R. Demers, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Traditional Equity And Contemporary Procedure, Thomas O. Main

Washington Law Review

This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …

The Government As Litigant: Further Tests Of The Case Selection Model, Theodore Eisenberg, Henry Farber

Cornell Law Faculty Publications

We develop a model of the plaintiff's decision to file a lawsuit that has implications for how differences between the federal government and private litigants translate into differences in trial rates and plaintiff win rates at trial. Our case selection model generates a set of predictions for relative trial rates and plaintiff win rates, depending on the type of case and whether the government is defendant or plaintiff. To test the model, we use data on about 474,000 cases filed in federal district court between 1979 and 1994 in the areas of personal injury and job discrimination, in which the …

Lay Participation In Legal Decision Making: Introduction To Law & Policy Special Issue, Valerie P. Hans

Cornell Law Faculty Publications

United States scholarship on lay participation revolves around one predominant form of lay participation, the jury (Hans & Vidmar forthcoming 2004). However, in the legal systems of many countries, laypeople participate as decision makers in other ways. Laypersons serve as judges (Provine 1986), magistrates (Diamond 1993), and private prosecutors (Perez Gil 2003). Lay and law-trained judges may also decide cases together in mixed tribunals (Kutnjak Ivkovi6 2003; Machura 2003; Vidmar 2002). Although diverse in structure, these methods share with the jury a set of animating ideas about lay involvement in legal decision making.

Many of these ideas appear to be …

You've Got Mail: The Modern Trend Towards Universal Electronic Service Of Process, Jeremy A. Colby

Buffalo Law Review

No abstract provided.

Racial Discrimination In Jury Selection: Professional Misconduct, Not Legitimate Advocacy, Lonnie T. Brown, Jr.

Scholarly Works

This Article examines the paradox between the adversary and disciplinary systems' outward condemnation of discrimination in jury selection and their apparent simultaneous inward acceptance of such conduct as legitimate advocacy.

Getting Title Vii Back On Track: Leaving Allison Behind For The Robinson Line, W. Lyle Stamps

Brigham Young University Journal of Public Law

No abstract provided.

A Review Of China's New Civil Evidence Law, Paul J. Schmidt

Washington International Law Journal

On December 21, 2001, China's Supreme People's Court promulgated landmark rules concerning the production and use of evidence in civil cases. These rules became effective on April 1, 2002 and apply to legal actions initiated after that date. The rules apply in all Chinese courts, from the high and intermediate level courts found at the provincial and prefecture level, down to the basic level courts found in rural counties and in urban districts. Of the eighty-three newly promulgated rules, more than half concern procedures for exchanging, confronting, investigating, or discovering evidence. Eleven are strict rules of evidence. The remainder is …

Regulation Of Lawyers Without The Code, The Rules, Or The Restatement: Or, What Do Honor And Shame Have To Do With Civil Discovery Practice?, W. Bradley Wendel

Cornell Law Faculty Publications

One of the most striking things to notice when "looking back" on the regulation of the legal profession is the relative absence of enforceable legal sanctions for unethical behavior by lawyers. Before the promulgation in 1970 of the ABA's Model Code of Professional Responsibility, regulation of the legal profession was largely a matter of a fraternal body taking care of its own, and occasionally expelling miscreants. Now, of course, there is a complex body of law, enforced by courts and regulatory authorities with overlapping jurisdiction, that governs a substantial amount of the day-to-day activities of lawyers.

The hypothesis I explore …

A Review Of China's New Civil Evidence Law, Paul J. Schmidt

Washington International Law Journal

On December 21, 2001, China's Supreme People's Court promulgated landmark rules concerning the production and use of evidence in civil cases. These rules became effective on April 1, 2002 and apply to legal actions initiated after that date. The rules apply in all Chinese courts, from the high and intermediate level courts found at the provincial and prefecture level, down to the basic level courts found in rural counties and in urban districts. Of the eighty-three newly promulgated rules, more than half concern procedures for exchanging, confronting, investigating, or discovering evidence. Eleven are strict rules of evidence. The remainder is …

The Evolution Of Mjp, Irma S. Russell

Faculty Works

This article examines the ABA revision to Model Rules 5.5 and 8.5 in light of today's legal world where representing clients in states outside the lawyer's state of licensure is commonplace, particularly in areas of practice that involve federal law, such as environmental law, and clients with far-flung property or business transactions in numerous jurisdictions. The article notes that although the revision to these rules represents the first step in a necessary liberalization of ethical rules and statutes to permit competent lawyers to service client needs efficiently and encourages more uniformity of approach, the rules and UPL statutes still create …

Advisory Juries And Their Use And Misuse In Federal Tort Claims Act Cases, Matthew L. Zabel

BYU Law Review

No abstract provided.

Thinking Like A Lawyer, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Guide To Understanding Discovery Sanctions Under Illinois Supreme Court Rule 219(C) And Fashioning An Appropriate Judicial Response To Serious Discovery Misconduct, A, Sheldon Gardner, Scott William Gertz

Loyola University Chicago Law Journal

No abstract provided.

Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron

Faculty Scholarship

No abstract provided.

Paddling Up The Wrong Stream: Why The Stream Of Commerce Theory Is Not Part Of The Minimum Contacts Doctrine, 55 Baylor L. Rev. 503 (2003), Diane S. Kaplan

UIC Law Open Access Faculty Scholarship

No abstract provided.

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 …

The Potential And Challenges Of Transnational Litigation For Feminist Concerned About Domestic Violence Here And Abroad, Merle H. Weiner

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Into The Abyss: How Party Autonomy Supports Overreaching Through The Exercise Of Unequal Bargaining Power, 36 J. Marshall L. Rev. 421 (2003), Pamela Edwards

UIC Law Review

No abstract provided.