Litigation Commons^™

Practice And Procedure, R. Neal Batson, Ben F. Johnson Iii

Mercer Law Review

No abstract provided.

The Vanishing Right Of A Plaintiff To Voluntarily Dismiss His Action, 9 J. Marshall J. Prac. & Proc. 853 (1976), Cary Fleisher

UIC Law Review

No abstract provided.

The 1975 New York Judicial Conference Package: Class Actions And Comparative Negligence, Adolf Homburger

Buffalo Law Review

No abstract provided.

A Glance At Summary Judgment, Thomas J. Browning

Mercer Law Review

EDITOR'S NOTE: A motion for summary judgment is one of the most frequently used pre-trial motions. The following article was written as a quick-reference index for the Judges of the Cobb Superior Court in ruling on these motions. In keeping with our policy of presenting articles to aid the practicing attorney, as well as the academician, we are including the article in this year's Survey. This is the authority practicing attorneys will no doubt face from the Georgia judiciary on a motion for summary judgment.

I. PURPOSE

Purpose of Summary Judgment: A primary purpose of the summary judgment procedure is …

Class Actions Under Rule 23(B)(2): A Type Of Class Action Which Does Not Require Eisen Notice, Gary L. Eby

Cleveland State Law Review

This comment will address the subject of class actions under Federal Rule 23(b) (2) and will trace the development of notice requirements, taking note of the split of authority on the issue. The holding and the deceivingly broad language of the Supreme Court's decision in Eisen will also be examined in order to illustrate its lack of effect on the (b) (2) notice requirements that have developed in the lower courts.

Instructing The Deadlocked Jury: Some Practical Considerations, 8 J. Marshall J. Prac. & Proc. 169 (1974), Thomas H. Senneff

UIC Law Review

No abstract provided.

Shareholder Derivative Actions: A Modest Proposal To Revise Federal Rule 23.1, Robert A. Kessler

University of Michigan Journal of Law Reform

The purpose of this article is to suggest the addition of two words, "if necessary"-or better yet, the phrase "if necessary under the law of the forum state"-to clause (1) of Federal Rule of Civil Procedure 23.1. This Rule sets forth the requirements for a shareholder's derivative action in the federal courts.

Manageability Of Notice And Damage Calculation In Consumer Class Actions, Michigan Law Review

Michigan Law Review

This Comment will examine the likelihood that Rule 23, as it has been interpreted since its amendment, will provide a mechanism through which consumers may successfully resolve their grievances. The focus will be on the manageability problems of providing the requisite notice and of devising a method of calculation and distribution of damages.

Attorney's Fees As An Element Of Costs: The Copyright Experience, E. K. Ii

Georgia Law Review

The amount of money frequently involved in copyright litigation, especially on the part of the defendant, is trifling. The expense of any litigation is considerable. Unless, therefore, some provision is made for financial protection to a litigant, if successful, it may not pay a party to defend rights, even if valid, a situation opposed to justice.... It is increasingly recognized that the person who forces another to engage counsel either to vindicate, or defend, a right should bear the expense of such engagement and not his successful opponent.

The Consumer Class Action, Arthur H. Travers Jr., Jonathan M. Landers

Publications

No abstract provided.

Insurance Questions In Voir Dire, Kenneth S. Kabb

Cleveland State Law Review

The scope of this article includes the voir dire examination in the federal courts, primarily in civil cases. The questions to be considered are: (1) how is the voir dire examination to be conducted; (2) what are the limitations imposed on the trial judge, counsel, and the parties with respect to the manner and conduct of the questioning; (3) what is the allowable scope of questions that may be asked prospective jurors; and (4) what will constitute reversible error, and who has the burden of proof.

James: Civil Procedure, Jon R. Waltz

Michigan Law Review

A Review of Civil Procedure by Fleming James, Jr.

Revitalization Of The International Judicial Assistance Procedures Of The United States: Service Of Documents And Takings Of Testimony, Richard F. Gerber

Michigan Law Review

This comment will examine two aspects of such judicial assistance-service. of documents and taking of testimony-and it will analyze each from the viewpoint of assistance obtained abroad in aid of American litigation as well as assistance rendered within the United States in aid of foreign litigation. It will attempt to survey some of the problems involved in securing performance of these acts, indicate the changes in current practice which are likely to result from the revisions of the Federal Rules of Civil Procedure and the proposed amendments to the Judicial Code, and, last, suggest some additional measures which might promote …

Civil Procedure- Venue-Effect Of Contract Provision Fixing Venue As To Future Litigation, Robert C. Bonges

Michigan Law Review

Defendants, residents of Harris County, Texas, executed in Harris County a conditional sale contract to purchase a food freezer from plaintiff's assignor. One of the contract provisions was that any suit on the contract was to be tried in Travis County, Texas. Plaintiff subsequently brought an action on the contract in Travis County, and defendants, contrary to their agreement, requested the trial court to transfer the action to a court of proper jurisdiction in Harris County, which was the proper county for suit under the applicable venue statute. In response, plaintiff argued that, since the contract created an obligation performable …

Right To Jury Trial In Ohio Civil Suits, Samuel M. Jones Iii

Cleveland State Law Review

In most instances the right to a jury trial either clearly does or does not exist. Yet there are some instances where this constitutional right is not clear. However, lawyers, pressed for time and more concerned with substantive issues, fail to argue the issue and thus it is rarely litigated. Those lawyers who are concerned with the jury trial question, for tactical reasons or otherwise, are hampered by a dearth of material providing adequate guides in this area. This article is designed to fill this void.

Procedural Problems Of Class Suits, Joseph J. Simeone

Michigan Law Review

The purpose of this article is to discuss numerous aspects of the class device, to discuss the many procedural problems confronting court and counsel, to determine the effectiveness of one type of class suit-the spurious-and in the conclusion, to propose legislation for a new rule independent of the rules regarding class actions, a remedy which would more effectively permit the dispatch of numerous claims arising from similar fact patterns.

A Lecture On Appellate Advocacy, Karl N. Llewellyn

Addison Harris Lecture

No abstract provided.

Selecting A Jury In Civil Trials, Forrest A. Norman

Cleveland State Law Review

It is probably no exaggeration to state that many cases are won or lost on the jury selection. Every lawyer is familiar with cases that were tried through to a jury verdict and following a motion or appeal, were retried to a different jury, with opposite results being reached. In many of these cases the witnesses, the testimony, and all of the facts remain the same-the only difference being in the jury and the result. Thus, the importance of the jury selection cannot be overestimated.

Admission Of Liability, Richard H. Burgess

Cleveland State Law Review

There is a great amount of resistance to the admission of liability when the slightest defense is available. Many defendants' attorneys would prefer to take the long chance of hoping for an unexpected verdict rather than admit fault and leave only the issue of damages to the jury. Surprisingly, there have actually been cases in which liability was admitted and the jury returned a verdict of no cause of action. Generally speaking, though, an admission of liability will tend to keep the damage award reasonable, but it will take away the slight possibility of an unexpected defendant's verdict.

The Civil Investigative Demand: New Fact-Finding Powers For The Antitrust Division, Richard L. Perry, William Simon

Michigan Law Review

The complexity, scope and length of modem antitrust litigation bring to prominence the procedures by which evidence - particularly documentary evidence - is discovered and placed before the courts and administrative agencies. Fact-finding mechanisms now available for ferreting out and prosecuting violations make up an imposing array. These include the grand jury subpoena, the discovery provisions of the Federal Rules of Civil and Criminal Procedure and the subpoena and visitorial powers of certain administrative agencies. The "civil investigative demand," a precomplaint compulsory process, is a new weapon proposed to be added to this arsenal. Few dispute the desirability of new …

Federal Procedure - Venue - Application Of Special Venue Provision To Change Of Venue In Patent Infringement Action, Dean L. Berry S.Ed.

Michigan Law Review

Petitioner brought a patent infringement action in the northern district of Texas, wherein the alleged infringement occurred and the named defendants resided and had a regular place of business. On motion by the named defendants under 28 U.S.C. §1404(a), authorizing the transfer of certain actions to a district in which the action "might have been brought," the court ordered transfer to the northern district of Illinois where litigation on the same patent was already in progress between the plaintiff and other alleged infringers. Petitioner's motion for mandamus to require the Texas district court to set aside this transfer order was …

Federal Procedure - Jurisdiction - Statutory Change In Jurisdictional Amount And Corporate Citizenship, Philip Belleville

Michigan Law Review

A recent congressional amendment of federal district court jurisdictional requirements for both diversity of citizenship and federal question litigation has raised the required amount in controversy from $3,000 to $10,000. The trial court has also been given discretion either to deny costs or assess them against the plaintiff if he is finally adjudged entitled to recover less than $10,000, determined without regard to any set-off or counterclaim and exclusive of interest and costs. Further, for purposes of diversity jurisdiction and removal, a corporation is now deemed a citizen "of any State by which it has been incorporated and of the …

Compulsory Joinder Of Parties In Civil Actions, John W. Reed

Michigan Law Review

Compulsory joinder cases involving interests in land display one peculiar and important characteristic: there is almost never any need in the state courts to wrestle with the question of whether a person is indispensable as distinguished from necessary. One hastens to add that this attribute of land cases appears to have gone largely unnoticed, but it exists none the less. It arises out of the fact that in a suit involving real property it is never impossible for the court to obtain jurisdiction over all persons interested therein to an extent which will enable the court to adjudicate controversies over …

Compulsory Joinder Of Parties In Civil Actions, John W. Reed

Articles

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 …

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

Articles

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.

Morgan: Some Problems Of Proof Under The Anglo-American System Of Litigation, Roy R. Ray

Michigan Law Review

A Review of Some Problems of Proof Under the Anglo-American System of Litigation. By Edmund Morris Morgan.

Venue-The Need For A Change In The Venue Provisions Of The Federal Employers' Liability Act, S. I. Shuman S.Ed.

Michigan Law Review

In response to the need created by a highly dangerous era of railroad employment, and subsequent to the passage of similar legislation in Europe, there was enacted in 1906 a Federal Employers' Liability Act. The attempted coverage of the first FELA was too broad to withstand the constitutional scrutiny of a five-to-four Supreme Court, and it consequently remained for the Congress of 1908 to enact valid legislation for the protection of the railroad employee. Whether or not: the FELA is the most efficacious solution to the problem of the injured railroad employee continues to be warmly debated, but for the …

Evidence-Privilege-Right Of Third Person To Assert Privilege As To Accident Report Made Confidential By Statute, Richard W. Young S.Ed.

Michigan Law Review

Plaintiff brought a negligence action for injuries sustained when the automobile in which she was a passenger collided with that operated by the defendant. Defendant questioned a police officer, who had filed the accident report, concerning statements made to him by the driver of the vehicle in which the plaintiff was riding. The trial court permitted this testimony over the plaintiff's objection that these statements were privileged under an Iowa statute purporting to make written accident reports confidential and inadmissible in evidence. On appeal after a verdict was returned in favor of the defendant, held, reversed. The statute can …

Federal Procedure - Appellate Practice - Duty Of The Court Of Appeals To Grant Rehearings En Banc, Raymond R. Trombadore S.Ed.

Michigan Law Review

In a suit for accounting, petitioners were denied relief in the district court and a division of the Court of Appeals for the Ninth Circuit affirmed by a two-to-one vote. Petitioners then applied for a rehearing before the court of appeals en bane. With one dissent, the rehearing was denied by the division, and the request that the rehearing be en bane was stricken as "being without authority in law or in the rules or practice of the court.'' Petitioners moved to vacate the order denying the request for a rehearing en bane on the ground that such a request …

Civil Procedure - Judgments - Exceptions To The Rule Of Res Judicata, William A. Bain, Jr., S.Ed.

Michigan Law Review

A land contract provided for a conveyance to Pearson from Adams and his wife. The wife was not a party to the contract and refused to execute the deed. Pearson sought specific performance requesting relief of a type not then available in Illinois and when asked if he would accept a deed from Adams alone, he refused. The action was dismissed. Adams then brought this action in ejectment and Pearson counterclaimed requesting a deed executed by Adams alone. The trial court found that the judgment in the previous action was res judicata as to the counterclaim. On appeal, held, …