Civil Procedure Commons^™

Police Misconduct - A Plaintiff's Point Of View, Fred Brewington

Touro Law Review

No abstract provided.

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

Section 1983 Custom Claims And The Code Of Silence, Myriam Gilles

Touro Law Review

No abstract provided.

Sua Sponte Actions In The Appellate Courts: The "Gorilla Rule" Revisited, Ronald J. Offenkrantz, Aaron S. Lichter

The Journal of Appellate Practice and Process

No abstract provided.

Communication And Competence For Self-Representation, E. Lea Johnston

Fordham Law Review

In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. In applying these standards, states …

Summary Judgement In Employment Discrimination Cases In The Eastern District Of New York, Peter J. Ausili

Touro Law Review

No abstract provided.

Strategic Evidence Issues In Equal Employment Litigation, Marc Rosenblum

Touro Law Review

No abstract provided.

Hairr V. First Judicial Dist. Ct., 132 Nev. Adv. Op. 16 (Mar. 10, 2016), Douglas H. Smith

Nevada Supreme Court Summaries

The Supreme Court denied petitioners’ application for a writ of mandamus for abuse of the district court’s discretion. If granted, this writ would have compelled the district court to grant the petitioners’ application to intervene under Rule 24 of the Nevada Rule of Civil Procedure as defendants in a constitutional challenge to a program that awards grants to children who are educated by entities other than public schools. The State is presumed to adequately represent the interests of those who support the bill. Since they did not demonstrate a conflict of interest with the State’s position or present an argument …

Fraud On The Court And Abusive Discovery, David R. Hague

Nevada Law Journal

No abstract provided.

What Remains Of Vicarious Jurisdiction For Establishing General Jurisdiction Over Corporate Defendants After Daimler Ag V. Bauman?, Keri Martin

Seton Hall Circuit Review

No abstract provided.

A Constitutional Right To Discovery? Creating And Reinforcing Due Process Norms Through The Procedural Laboratory Of Arbitration, Imre Stephen Szalai

Pepperdine Dispute Resolution Law Journal

This article explores an overlooked dynamic between arbitration and the more formal court system. As developed in more detail below, this article's thesis is that arbitration can help define and reinforce due process norms applicable in court, and a due process-like norm regarding discovery is beginning to develop. Courts often review arbitration agreements for fairness, and through this judicial review, courts have developed a body of law discussing and defining whether certain procedures (or the lack thereof) violate fairness norms in connection with the resolution of a particular dispute. Through this body of law exploring procedural fairness, one can identify …

Litigating In The 21st Century: Amending Challenges For Cause In Light Of Big Data, Andrew Kasabian

Pepperdine Law Review

The amount of data generated daily is growing exponentially. The majority of this data is unstructured data. Big Data analytics provides the capability to analyze sets of unrelated data to find hidden and meaningful correlations and predict an individual’s future actions. Therefore, Big Data can alter trial preparation by opening up new sets of information for lawyers to analyze in the jury selection process. Privacy concerns may follow Big Data’s incorporation because Big Data aggregates an individual’s information and predicts future actions. This Comment details how Big Data will provide a net benefit to trial preparation. In order to protect …

A Student Electronic Discovery Primer: An Essential Companion For Civil Procedure Courses, Jennifer M. Smith, William F. Hamilton

Faculty Books and Book Contributions

A Student Electronic-Discovery Primer supplements the traditional civil procedure textbook. The Primer is specifically designed as a practical and accessible guide for the first-year law student. Traditional civil procedure textbooks have given short shrift to what has emerged as a foundation of modern civil litigation—electronic discovery. This concise text introduces students to the new and often troubling themes of electronic discovery: preservation, search, metadata, and forms of production, touching upon the major issues that confront the use of digital data in litigation. It also includes sample electronic discovery practice forms and outlines the key 2015 amendments to the Federal Rules …

Beware Of Judging A Book Just By Its Cover: Are The German Rules Of Civil Procedure, In Their Practical Application, Really As Capable To Facilitate A Speedy And Fair Trial As One Might Think?, Julia Prahl

Duke Law Master of Judicial Studies Theses

No abstract provided.

Are We Insane? The Quest For Proportionality In The Discovery Rules Of The Federal Rules Of Civil Procedure, Paul W. Grimm

Duke Law Master of Judicial Studies Theses

No abstract provided.

Recent Development: Scarfield V. Muntjan: A Jury Demand In An Amended Complaint, Which Is Dismissed For Failure To State A Claim, Does Not Revive A Previously Waived Jury Demand For Counts In The Original Complaint, Thomas Andrew Barnes

University of Baltimore Law Forum

The Court of Appeals of Maryland held that, while a waived jury trial may be revived by an amended complaint in which new and substantive issues are raised, the dismissal of a new count raised in an amended complaint will not revive the originally waived demand for jury trial.

Paterno V. Laser Spine Institute: Did The New York Court Of Appeals' Misapplication Of Unjustified Policy Fears Lead To A Miscarriage Of Justice And The Creation Of Inadequate Precedent For The Proper Use Of The Empire State’S Long-Arm Statute?, Jay C. Carlisle, Christine M. Murphy, Kiersten M. Schramek, Marley Strauss

Elisabeth Haub School of Law Faculty Publications

This article discusses CPLR section 302(a)(1) as applied by the New York State Court of Appeals in Paterno v. Laser Spine Institute. The Paterno Court failed to properly apply a statutory jurisdictional analysis by conflating it with a due process inquiry. Also, the Court unnecessarily balanced the interests of the Empire State's citizens in having a forum for access to justice with unjustified policy fears of potential costs to the state from assertions of in personam jurisdiction. Furthermore, the Court's policy focus4 on the protection of medical doctors from lawsuits and the prevention of “floodgate” litigation which would adversely affect …

Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce

Faculty Scholarship

Class action tolling means that when parties in a suit allege federal treatment, the individual claims of putative class members are tolled federal courts while the class action is pending. Commonly referred to as American Pipe tolling, this rule prevents duplicative litigation that would result if plaintiffs were required to intervene or file independent lawsuits to protect their interests while the class action was pending. Federal courts have long settled the application of American Pipe tolling in scenarios involving later-filed individual actions. In other scenarios, however, the application of American Pipe tolling has caused considerable uncertainty. This Article examines the …

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

Institutional Competence And Civil Rules Interpretation, Lumen N. Mulligan, Glen Staszewski

Faculty Works

No abstract provided.

Restoring The Civil Jury In A World Without Trials, Dmitry Bam

Faculty Publications

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.

This article argues that we must reimagine the civil jury to match the …

Saving The Public Interest Class Action By Unpacking Theory And Doctrinal Functionality, Suzette M. Malveaux

Publications

No abstract provided.

Race, Class, And Access To Civil Justice, Sara Sternberg Greene

Faculty Scholarship

After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to …

Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Murphy

Faculty Scholarship

This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting …

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

Mcdonald Carano Wilson, Llp. V. Bourassa Law Group, 131 Nev. Adv. Op. 90 (December 3, 2015), Patrick Caddick

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order. The Court reversed and remanded the district court’s ruling that NRS § 18.015 does not allow an attorney to enforce a charging lien when the attorney withdrew from representation.

Mandatory Process, Matthew J.B. Lawrence

Faculty Scholarly Works

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights …

Procedural Triage, Matthew J.B. Lawrence

Faculty Scholarly Works

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …

Procedural Triage, Matthew J.B. Lawrence

Fordham Law Review

    Prior scholarship has assumed that the inherent value of a "day in court" is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a "day in court" can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …

Michaels V. Pentair Water Pool & Spa, Inc., 131 Nev. Adv. Op. 81 (Oct. 1, 2015), F. Shane Jackson

Nevada Supreme Court Summaries

The Court of Appeals considered an appeal from a district court order denying the plaintiff’s post-trial motion for a new trial, which alleged that the defendant’s attorney committed misconduct during closing arguments at trial. The Court held that the district court failed to make the detailed findings required by the Nevada Supreme Court for claims of attorney misconduct and remanded the case for the district court to reconsider the matter and make the necessary findings.