Civil Procedure Commons^™

Representative Litigation In Maryland: The Past, Present, And Future Of The Class Action Rule In State Court , Ian Gallacher

Maryland Law Review

No abstract provided.

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 …

Trial Preparation, Barbara Mcquade

Book Chapters

Trial preparation should begin with a careful review of the current law applicable to the case and a consideration of what legal and factual arguments will be presented to the jury. Such a review is often done in connection with the preparation of a court-ordered final pretrial order or the preparation of a trial brief. Even where such documents are not required by the court, an outline of the applicable law and the critical evidence expected to be put forth in the trial is vital to trial preparation.

As soon as possible before the scheduled trial date, you should consider …

Hindsight Bias And Tort Liability: Avoiding Premature Conclusions, Philip G. Peters Jr.

Faculty Publications

Cognitive psychologists know that judgments made in hindsight are distorted by two cognitive heuristics-hindsight bias and outcome bias. Hindsight bias makes bad outcomes seem more predictable in hindsight than they were ex ante. Outcome bias induces us to assume that people who cause accidents have been careless. Because of these biases, individuals who know that a bad outcome has occurred tend to evaluate prior conduct more harshly than they would if they were unaware of the actual outcome. In negligence actions, defendants are supposed to be judged by the reasonableness of their conduct, not by its outcome. Jurors are asked …

Foxes Guarding The Chicken Coop: Intervention As Of Right And The Defense Of Civil Rights Remedies, Alan Jenkins

Michigan Journal of Race and Law

This article focuses on the recent spate of cases in which educational institutions on the grounds that their race-conscious admissions policies are unconstitutional. The author analyzes the role of minority students and organizations who are the beneficiaries of those polices at the defendant institutions and their recent attempts to intervene in the lawsuits pursuant to Rule 24 of the Federal Rules of Civil Procedure. First, the author argues that under the traditional interpretation of Rule 24(a); intervention of right should be granted to minority students and organizations in the great majority of instances. Second, the author looks at the reasons …

Reloading The Arsenal In The Informational War On Pollution - Citizens As Soliders In The Fight And How A Lack Of Actionable Legs On Which To Stand Nearly Forced A Cease-Fire, Lori May Peters

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Funny Thing Happened On The Way To The Courtroom: Spoilation Of Evidence In Illinois, 32 J. Marshall L. Rev. 325 (1999), Kristin Adamski

UIC Law Review

No abstract provided.

Judge Versus Jury On The Scales Of Justice: 35 U.S.C. 112, 6 Equivalents In The Balance, 32 J. Marshall L. Rev. 833 (1999), Robert N. Young

UIC Law Review

No abstract provided.

E-Mail: A Constitutional (And Economical) Method Of Transmitting Class Action Notice, Jennifer Mingus

Cleveland State Law Review

This Note argues that courts should find that notice by e-mail satisfies the standards of due process that the United States Supreme Court has developed for class action notice. First, this Note establishes that e-mail is a form of individual notice, as required by Eisen v. Carlisle & Jacquelin. Second, this Note shows that e-mail notice is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action" and "reasonably certain to inform those affected" as required by Mullane v. Central Hanover Bank & Trust Co. Third, this Note contends that due process is a …

Giving The Haves A Little More: Considering The 1998 Discovery Proposals, Elizabeth G. Thornburg

SMU Law Review

No abstract provided.

The Antiquated "Slight Evidence Rule" In Federal Conspiracy Cases, Brent E. Newton

The Journal of Appellate Practice and Process

This article addresses the risk of wrongful convictions in federal conspiracy cases. The article points out how conspiracy cases rely heavily on circumstantial evidence and the slight evidence rule. The risk of over assigning liability to parties with minor involvement is also discussed.

Local Procedural Review In The Eighth Circuit, Carl Tobias

The Journal of Appellate Practice and Process

This article addresses a little known role of the United States Courts of Appeals to review district court procedures. The discussion begins with this role assigned by the Judicial Improvements and Access to Justice Act of 1988 and Federal Rule of Civil Procedure 83. The article then analyzes how the United States Court of Appeals for the Eighth Circuit discharges this role.

A Trial Judge's Perspective - Promoting Justice And Fairness While Protecting Privilege, Honorable Marian Blank Horn

Fordham Urban Law Journal

This Article discusses the topic of privileged communications and ethics in the courtroom. The Article offers the unique perspective of a trial judge and his courtroom interactions with lawyers and witnesses alike. It discusses cases relating to established courtroom privileges, such as marriage, attorney/client and priest/penitent, as well as qualified privileges such as the journalism privilege. Further, it discusses the potential for new or novel privileges, such as the accountant/auditor-client work product privilege and the academic peer review privilege. Finally, the Article lays out suggestions for trial judges for how to best utilize the privilege rules while simultaneously promoting fairness …

A Nice Place To Visit But I Wouldn't Want To Litigate There: The Effects Of Cybersell V. Cybersell On The Law Of Personal Jurisdiction, W. David Falcon Jr.

Richmond Journal of Law & Technology

In a world divided by barriers of language and culture, the Internet is the nexus that connects the most rural outposts of technology to the global business centers. The Internet's most popular user interface, the World Wide Web, is an interwoven network of computers through which news and information can traverse international barriers in a matter of seconds. Using an Internet Service Provider ("ISP") and a personal computer, the average user can access the World Wide Web and enter the largest repository of public information on the planet. The boundaries are virtually limitless, and the general absence of content restrictions …

Fin-De-Siecle Federal Civil Procedure, Carl W. Tobias

Law Faculty Publications

Professor Laurens Walker's The End of the New Deal and the Federal Rules of Civil Procedure, 82 Iowa L. Rev.1269 (1997) (New Deal's End), is a thought-provoking evaluation of the relationship between the New Deal's conclusion and modem civil process. Professor Walker canvasses a series of recent, puzzling changes which "present the most serious challenge to the procedural status quo since the adoption of the original Federal Rules in 1938." The author finds that the New Deal's demise and the rejection of that regime's reliance on experts, policies of centralized federal decisionmaking, and establishment of the national government …

Local Procedural Review In The Eighth Circuit, Carl W. Tobias

Law Faculty Publications

The resolution of substantive disputes is the responsibility that legal scholars, additional federal court observers and the public most closely associate with the United States Courts of Appeals. It is important to remember, however, that circuit judicial councils in each of the courts also discharge significant duties. These obligations are principally administrative, although their comprehensive implementation can be critical to the effective operation of the appellate courts and to the federal district courts within the circuits' purview. The review of local district procedures for consistency and redundancy with the Federal Rules of Civil Procedure and Acts of Congress is one …

The Predictability Of Punitive Damages Awards In Published Opinions, The Impact Of Bmw V. Gore On Punitive Damages Awards, And Forecasting Which Punitive Awards Will Be Reduced, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article assesses the relation between compensatory damages and punitive damages in cases leading to published opinions and BMW v. Gore's impact on the patterns of punitive damages awards in these opinions. We find that punitive damages awards are considerably higher in cases leading to published opinions than in trial level cases. But the correlation between compensatory and punitive awards found in trial level data persists in published opinions and is all but indistinguishable from the correlation in trial level data. We find no significant difference in the pattern of awards before and after BMW and no significant difference …

The Arizona Jury Reform Permitting Civil Jury Trial Discussions: The View Of Trial Participants, Judges, And Jurors, Valerie P. Hans, Paula Hannaford-Agor, G. Thomas Munsterman

Cornell Law Faculty Publications

In 1995, the Arizona Supreme Court reformed the jury trial process by allowing civil jurors to discuss the evidence presented during trial prior to their formal deliberations. This Article examines the theoretical, legal, and policy issues raised by this reform and presents the early results of a field experiment that tested the impact of trial discussions. Jurors, judges, attorneys, and litigants in civil jury trials in Arizona were questioned regarding their observations, experiences, and reactions during trial as well as what they perceived to be the benefits and drawback of juror discussions. The data revealed that the majority of judges …

Evidence: 1997-1998 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Discovery In International Legal Developments Year In Review: 1998, Christopher J. Borgen

Faculty Publications

American procedure regarding international discovery stems from 28 U.S.C. §§ 1781-1783, and the Federal Rules of Civil Procedure, in particular Rule 28(b). The leading case on the topic of international discovery is the Supreme Court's decision in Société Nationale Industielle Aerospatiale v. United States District Court. Many later cases base their reasoning on interpretations of Aerospatiale. This article is a brief review of developments during the year.

Annual Survey Of Virginia Law: Civil Practice And Procedure, John L. Marshall Jr.

University of Richmond Law Review

This article focuses on some of the recent developments in civil litigation from June 1, 1998 to May 30, 1999, that have been effected by the Virginia General Assembly and the Supreme Court of Virginia. Each numbered discussion section is organized by topic in alphabetical order. This article highlights legislation of general interest to civil practitioners and does not purport to be all inclusive. This article does not address criminal procedure.

Contesting Government's Financial Interest In Drug Cases, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

In 1984, the civil asset forfeiture law was amended to allow the U.S. Department of Justice (DOJ) and state law enforcement agencies to retain many of the "drug-related assets" they seize for their own law enforcement purposes. Under this amendment, some local law enforcement agencies have managed to double or triple their appropriated budgets by targeting such assets. As former Attorney General Richard Thornburgh has noted, "it's now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation." The American people, however, …

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Deposed Parties: Who Has A Right To Access Depositions In Civil Cases?, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

Jury Reform At The End Of The Century: Real Agreement, Real Changes, Phoebe C. Ellsworth

Articles

Complaints about the jury system and calls for its reform are nothing new-they have probably existed as long as the jury system itself. Warren Burger called for the reform of the civil jury in 1971'; in 1905 William Howard Taft decried the contemporary tendency "to exalt the jury's power beyond anything which is wise or prudent .... ,2 Judges complain to judges, lawyers complain to lawyers, legal academics write articles about the jury for other legal academics, social scientists report their research on juries to other social scientists, and the jurors themselves go home and express their exasperation to their …

Creating The 'Portable' Guardianship: Legal And Practical Implications Of Probate Court Cooperation In Interstate Guardianship Cases, Charlene D. Daniel, Paula Hannaford-Agor

Faculty Publications

In this article, we discuss the legal and practical issues associ­ated with interstate guardianships--that is, those guardianships in which the ward has ties to more than one state. Part I addresses these issues in the context of jurisdictional questions, securing nec­essary information, judicial monitoring and enforcement of guardi­anship orders, and property management. Part II proposes some modest solutions to these problems, many borrowed from other ar­eas of law (e.g., child support enforcement, child custody determinations, enforcement of civil protection orders, involuntary civil commitment).

This abstract has been taken from the authors' introduction.

The Arizona Jury Reform Permitting Civil Jury Trial Discussions: The Views Of Trial Participants, Judges, And Jurors, Valerie P. Hans, Paula Hannaford-Agor, G. Thomas Munsterman

Faculty Publications

In 1995, the Arizona Supreme Court reformed the jury trial process by allowing civil jurors to discuss the evidence presented during trial prior to their formal deliberations. This Article examines and evaluates the theoretical, legal, and policy issues raised by this reform and presents the early results of a field experiment that tested the impact of trial discussions. Jurors, judges, attorneys, and litigants in civil jury trials in Arizona were questioned regarding their observations, experi­ences, and reactions during trial as well as what they perceived to be the benefits and drawbacks of juror discussions. The data revealed that the majority …

Still Adjusting To Markman: A Prescription For The Timing Of Claim Construction Hearings, William F. Lee, Anita K. Krug

Articles

This Article argues that, in most cases, there is an optimal time for holding the Markman hearing.

Part II provides a short summary of both the Federal Circuit's holding in Markman and the rationale behind the Supreme Court's affirmance of that holding. It then delves into the predictable effects of Markman, as well as into the maze of questions that the decision has engendered and the ways in which the district courts have answered those questions.

Part III discusses the issue of the timing of claim construction hearings, presenting at the outset the possible alternatives. It argues that holding …

Retooling American Discovery For The Twenty-First Century: Toward A New World Order?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Discovery Reform Redux, Carl W. Tobias

Law Faculty Publications

The recent resolve of the Advisory Committee on the Civil Rules to revisit reform of the discovery rules, which the Supreme Court revised as recently as 1993, is replete with ironies. In August, 1998, that Committee, which has primary responsibility for studying the Federal Rules of Civil Procedure and developing suggestions for their improvement, published proposals that would significantly revise the substantial 1993 revisions of the discovery rules. Ironies suffuse many specific aspects of the rule revision process and of the proposals to revise the 1993 revisions less than five years after their implementation. I emphasize the proposal to revise …