OVERVIEW1

Overview of a Civil Suit
[updated August 12, 2014]

Civil Procedure
William & Mary School of Law
Prof. Green

Civil Procedure is about the law governing how civil suits proceed in court: how they are initiated, how they are structured and progress, and how they are resolved. Because few of you have more than the most general familiarity with a civil suit, this overview will acquaint you with how one proceeds, using as an example an extremely simple case. We will then spend the rest of the course dealing, in far greater detail, with issues that were touched on in this overview.

Let's say that you and a friend each buy a laptop in a store on 42nd St. in New York City while on a trip from your home in Williamsburg, Virginia. The person who sold you the laptop said that it comes with Windows 8 Operating System. When you get home, you find that it doesn’t. You call the store, and they make it very clear that they will do nothing for you. What are your options?

You could call some law enforcement agency, such as the New York City Police or the FBI and tell them about the incident, hoping that some criminal laws have been violated. But even if they have, you cannot initiate criminal prosecution yourself. You have to hope that the relevant authorities will prosecute. Furthermore, criminal prosecution, even if it succeeds, may provide you with no relief, since the punishment may not include any compensation to you. What you need is a means of legal relief that can be initiated by you and that allows you to obtain personal relief. This is a civil suit.

But to bring a civil suit successfully, a whole assortment of issues have to be resolved, the most important of which will be spelled out in this outline. The resolution of some of these issues would be obvious to a lawyer and so would be passed over without any thought, but for you nothing is obvious and so we will address these issues explicitly.

But first, some important background.

The State and Federal Court Systems

There are two court systems in existence in every state: the court system of that state and the federal court system. Court systems are divided into two tiers: trial courts and appellate courts. A trial court is the court before which a suit is first brought in that system, which comes to a determination of the facts of the case (often through the use of a jury), and which issues a judgment. Trial courts have original jurisdiction over a case, that is, they are the first in the system to take the case. The judgments of trial courts can then be reviewed for legal errors by appellate courts. If an appellate court may take the case it has appellate jurisdiction over the case.

In the federal court system, the trial courts are called District Courts. The first level of appellate review in the federal court system consists of Courts of Appeals. The second and final level of appellate review is the Supreme Court. In unusual cases, the Supreme Court may act as a trial court, see U.S. Const. art. III, § 2, but we need not concern ourselves with such cases in this class.

The territorial scope of a federal district is often a state, but sometimes states are divided up into more than one district (e.g. there is an Eastern and a Western District of Virginia). The territorial scope of Courts of Appeals are by circuit. There are 12 regional circuits (including one just for D.C.), plus what is called the Federal Circuit, which primarily handles patent and tax cases for the whole country.

State court systems vary in structure, but they usually have a divided appellate tier similar to the federal court system. In Virginia the main trial courts are General District Courts, which have original jurisdiction over minor civil claims, and Circuit Courts, which have original jurisdiction over more substantial civil claims. Decisions of the General District Courts go to the Circuit Courts (which therefore can act as both trial and appellate courts). Decisions from the Circuit Courts go to the Court of Appeal, and the final level of review in the system is the Supreme Court of Virginia. In some court systems, there is only one level of appeal in the system, to the state supreme court. One final note about appeals in the state court system. If there is an issue of federal law involved in a case, it is possible for the United States Supreme Court to take an appeal concerning this issue, after appellate avenues within the state court system have been exhausted.

I want to begin by describing your suit on the assumption that it is taking place in federal court, without a discussion of the (largely constitutional) issues concerning whether you can sue in a federal court (we shall deal with these issues later). For this reason, your case will proceed largely under the Federal Rules of Civil Procedure. I will also assume that your suit is being brought in federal court in New York (in particular, the Southern District of New York), without a discussion of the issues concerning where you can sue in the federal or state court systems (these issues too will be dealt with later).

II.

Finding Substantive Law and Determining What Remedy You Want

A. Finding substantive law in your favor.

The first question to ask is whether civil law can provide you with relief. Not all wrongs can be legally redressed in a civil suit. I may find your whistling as you pass my house annoying and have asked you many times to stop, but there is no law that would provide me with relief if you refuse to do so. Whether you can receive relief in a civil suit is a question of substantive law. Substantive law is (roughly) the law determining what we may or may not do in our non-litigation activities. For example, under tort law, one may not drive one's car negligently. If you are harmed as a result of my negligent driving, you can be entitled to legal relief if you bring a civil suit against me. Substantive law includes other types of law than civil law (for example, criminal law), but since you want to bring a civil suit, you are interested only in substantive civil law.

Most of what you learn in law school is substantive law. In contrast, the law governing how rights and duties under substantive law are enforced in courts is procedural law. This course is about the procedural law governing civil suits.

1. Federal substantive law?

So you need substantive civil law in your favor. But whose substantive civil law should you look to? Some aspects of some commercial transactions are governed by federal law. In fact, however, it is doubtful that there is any applicable federal law in this case.

2. Choice of state substantive law?

But state law could have been violated. You are mistaken if you think that you can sue only under federal law because you are in federal court. As we shall see in class, it is often possible to sue under, say, Pennsylvanian or Alaskan (or indeed German) law in federal court. But, given that you can sue under state law, which state's law applies? This question can be important, because states' laws can differ in ways that could be crucial to your ability to obtain relief. This is a question of choice of law. Notice that simply because you are suing in federal court in New York, New York law is not necessarily the state law that applies. Which state's law applies is determined by legal rules called choice-of-law rules. It is possible under the choice-of-law rules that would be used by the federal court in New York that Pennsylvanian or Alaskan (or German) law applies.

There are no overarching choice-of-law rules that are used by all courts in the United States. The courts of each state use their own state choice-of-law rules. So a New York state court would use New York state choice-of-law rules (that is, the body of rules built up by New York state courts when making choice-of-law decisions, as well as any statutes that might have been enacted by the New York legislature telling New York state courts how to make choice-of-law decisions).

You might think that federal courts would use their own federal choice-of-law rules when making decisions about what state's law to apply in federal court. As it turns out, federal courts generally use the choice-of-law rules of the state where the court is sitting. (Why this is the case is a question we will deal with later in class.) Because you are in federal court in New York, the federal court will use New York choice-of-law rules. Let us assume that under New York choice-of-law rules, New York law would apply to your purchase of the computer. Indeed, because this is a very obvious choice-of-law case (almost all of the relevant aspects of the transaction being connected to New York), any state's choice-of-law rules would say that the only state law that could apply is New York law. (If you think choice-of-law is always this easy, however, imagine you had purchased the computer in a phone call from Virginia to New York.)

3. Which New York substantive law?

There are number of New York substantive civil laws that could provide you with relief. The person who sold you the computer (or the company he works for) could have committed the tort of fraud by falsely saying that the computer would have Windows 8. Thus, fraud under New York law provides you with a first cause of action. Or the company could have breached its contract with you by not providing you with a computer with Windows 8. Breach of contract under New York law is therefore your second cause of action. Both of these bodies of law may be made up of common law (law created by judges in their decisions) and/or statutory law (law enacted by legislatures).

B. What kind of relief do you want?

So you've got New York tort law and New York contract law as the laws you are suing under. Assuming that you are entitled to relief under these laws, what kind of relief do you want? What kind of relief you can get given what substantive law you are suing under is usually studied in the course on that area of substantive law (or in a course called "Remedies"). For example, you will study the law on remedies for breach of contract in your course on contracts. But you need to be broadly familiar with basic remedies in a course on civil procedure.

You may simply want rescission of your contract with the store, which would mean that you turn over the computer to the store and receive your money back. Or you may want money damages, for example, the difference between the value of the computer that was sold to you and its value if it had Windows 8. In addition to compensatory damages, which are intended to compensate you, there are also punitive damages, which are intended to deter similar violations in the future. Another form of relief is declaratory relief, where the court issues a binding statement about the legal status of the parties, without specifying what the defendant should do in response. For example, you might ask for declaratory relief in which the court states that the contract between you and the computer store is invalid due to fraud on the store's part.

There are other forms of relief that are possible in other cases but would probably not be relevant here. An injunction is relief in the form of an order by the court to the defendant to do or not do something (backed up with sanctions for noncompliance). For example, if you want someone to stop polluting your property you will ask for an injunction.

There is also relief that is preliminary, in the sense that it is provided in the initial stages of litigation merely to ensure that adequate relief will be able to be provided if the court subsequently determines that it is due. If it looks like the defendant is going to skip out of town with his assets, you might want to ask that his property be attached by the court, so that there is something out of which damages can ultimately be drawn. Or a preliminary injunction can be requested to stabilize the situation until the appropriateness of a final injunction can be determined.

Let's assume that you want compensatory damages in the form of the difference between the value of the computer with and without Windows 8 and punitive damages and that you think no preliminary relief is needed.

III.

The Structure of Your Lawsuit

A. Joinder of parties and claims by a plaintiff.

Once you've decided what law to sue under and what relief to ask for, you need to decide how you are going to structure your lawsuit. You are the plaintiff in the suit. The parties you are suing are defendants. Should you sue each defendant (the salesman and the store) in a different suit and have a different suit for each of the two causes of action (New York tort and New York contract)? That would mean you would have a total of four lawsuits going. Or should you join the causes of action against each defendant to make two suits, one against each defendant? Or should you also join the defendants to make only one suit, such that the salesman and the store are co-defendants? Perhaps you should even agree with your friend to join your suit with the suit that he is bringing, making the two of you co-plaintiffs.

Joinder of parties refers to the joinder of people (e.g. defendants or plaintiffs) in the same suit. Joinder of claims refers to the joinder of different causes of action against the same party. Both the joinder of claim and joinder of party rules under the Federal Rules of Civil Procedure (as well as under state procedural rules) are very complicated. You should be aware at this point that there is permissive joinder and compulsory joinder. Permissive joinder refers to a joinder of parties or claims that may take place but does not have to. Compulsory joinder refers to joinder of claims or parties that must take place. Furthermore, sometimes joinder is not allowed at all.

Another possibility in addition to joinder is a class action in which one sues as a class, that is, as a very large group of plaintiffs. (Rarely it is the defendants that are the class.) In a class action one suit or a few suits are representative of the suits of the class as a whole and the fortunes of the class as a whole are determined by the fortunes of those representative suits. There are important requirements under the Federal Rules for bringing a class action, but we will not discuss them in this course. In any event, a class action is not appropriate for your suit, since there are only two potential plaintiffs and two potential defendants.

B. Intervention.

So far we have been discussing how you will determine who are the plaintiffs and defendants in the suit. But someone might join the suit as a plaintiff or as a defendant on his own initiative. Perhaps your friend, who has a claim similar to yours, wants to join as a co-plaintiff or a third party wants to join as a defendant without requesting this of you. This is known as intervention, and we will discuss the requirements for it under the Federal Rules as well.

C. The joinder of parties and claims by parties other than plaintiff.

During the pleading period (which I will discuss below) the defendant can join a cause of action he has against the plaintiff to the plaintiff's cause of action against him. This is known as a counterclaim. For the purposes of the counterclaim, the plaintiff becomes a counter-claim defendant and the defendant a counter-claim plaintiff. Here too there are important joinder rules. Certain counterclaims are permissible but not required. Others are compulsory. Furthermore, the defendant might be forbidden, permitted or required to bring in other parties or claims in with his counterclaim against the plaintiff.

A defendant can also join a claim against a third-party (such as an insurer) who he thinks will be liable to him for any successful claim that the plaintiff makes against him. This is known as an impleader. There are important joinder rules concerning when an impleader is allowed.

A defendant can also join a claim against a co-defendant (and a plaintiff can join a claim against a co-plaintiff). These are known under the Federal Rules as cross-claims. There are limits on the cross-claims that are allowed as well.

Let's say that you decide to sue alone as plaintiff (and your friend does not intervene) and that you decide to join both the store and the salesman as co-defendants and to join all causes of action against them. Let's say that this joinder of claims and parties satisfies the joinder rules and that there is no other party or claim that must be joined.

Furthermore, let's assume that no counterclaims, cross-claims or impleaders arise during the pleading period.

IV.

Drafting and Serving Your Complaint

A. Drafting a complaint.

It's time to get the lawsuit going. The first step for this is writing up a complaint. A complaint is a formal statement to inform the defendants and the court of the claims that you are making. Complaints usually have four parts. There are: 1) the allegations of jurisdiction, in which you state why you are before the proper court to hear the matter, 2) the factual allegations, in which you state what happened, 3) the statement of your causes of action, in which you declare what substantive law was violated by your factual allegations, and 4) your prayer for relief, in which you say what types of relief you want.

There are important rules in state and federal courts concerning how specific one must be in one's factual allegations in order to initiate a suit properly. We will discuss the rules for drafting complaints under the Federal Rules of Civil Procedure.

Can you lie in your complaint? There is a very important federal rule limiting misrepresentation and other forms of improper or frivolous pleading in a complaint. This rule (called Rule 11) and the sanctions for non-compliance will be discussed in some detail in this class. When drafting your complaint for federal court, you will always have to keep Rule 11 in mind. Similar rules of honest and non-frivolous pleading exist in the state court systems.

Let's say you draft your complaint in keeping with the federal pleading rules and Rule 11.

B. Service and commencing the suit.

Under the Federal Rules, an action is commenced with the filing of the suit with the court. One then has some time to let the defendant know he is being sued through service upon him of the complaint and what is known as a summons (a formal notification to the defendant signed by the clerk of the court, which is served with the complaint).

Proper service of the summons and complaint is a matter of complicated law. We will examine the Federal Rules on service in some detail.

The Pleading Period

A. The defendant's answer and his defenses.

The service of the complaint is the beginning of what is sometimes known as the pleading period. This is the period during which certain formal documents are exchanged between plaintiff and defendant, new parties and claims are added through counterclaims, cross-claims and impleaders, and the contours of the dispute between the plaintiffs and the defendants are clarified. It is also a time when attempts to dispose of the case without having to look into the quality of the evidence that each side has are most often pursued.

With the service of your complaint, the ball is in the defendants' court. They must respond within a certain amount of time or suffer a default (a judgment against them for failure to respond). The responsive pleading that a defendant makes under the Federal Rules is called an answer. An answer is a formal response to the complaint that admits or denies each of the factual allegations in the complaint (if the defendant fails to deny, it is assumed to be admitted) and presents various defenses. In the answer, the defendant may offer his own factual allegations. The court can allow the plaintiff to submit another pleading in response to the defendant's answer, called a reply, but usually there is only a complaint and an answer.

On the basis of some of the defenses presented in the answer the defendant can request that one or all of the causes of action be dismissed during the pleading period without having to go to trial. A dismissal of the cause of action can be with prejudice or without prejudice. If it is with prejudice that means that the plaintiff has lost on this cause of action and cannot bring it again. His only hope is to appeal the dismissal. If it is without prejudice, he may cure the defect that brought about dismissal (if that is possible) and bring the cause of action again in that or another court system.

In addition to serving pleadings, the defendant or the plaintiff can bring motions. A motion is a request to the court to do something. Some motions are purely house-cleaning (e.g. a motion for more time to file one's answer). Others can resolve the dispute entirely. For example, a defendant can sometimes ask that the case be dismissed by motion rather than in the answer.

Let me familiarize you briefly with the types of defense that can be made by the defendant. The first type does not address the plaintiff's entitlement to relief at all. It attacks the procedural form in which the request for relief was brought and, if it succeeds, results in the dismissal of the case, but almost always without prejudice. These defenses are usually resolved during the pleading period. They include the claim that service was improper or that there is no subject matter jurisdiction (the case is not of the type that can be brought in a federal court -- more on that later), or no personal jurisdiction (the state where the suit is being brought is not one where the defendant can be submitted to suit -- more on that later as well) or no venue (which also includes standards concerning the appropriate place for the suit -- more on that too). Under the Federal Rules, some of these defenses must be brought early on in the pleading period or they are waived by the defendant. We will discuss these defenses and the waiver rules in some detail.

The second form of defense claims that even if everything that the plaintiff says in his factual allegations is true, there is nothing there that constitutes the cause of action asserted by the plaintiff. This defense is sometimes known in state courts as a demurer. In federal courts it is known as failure to state a claim. Defendants who make this defense during the pleading period will ask that the cause of action be dismissed. It can be dismissed with or without prejudice.

The third type of defense is what is known as an affirmative defense. Affirmative defenses are facts that if true would mean that the defendant escapes liability even if the plaintiff has alleged truthfully in his complaint and what he says constitutes a cause of action. One affirmative defense you probably already know of is lapse of the statute of limitations. Even if everything the plaintiff says is true and what he says constitutes a cause of action, if the statute of limitations has lapsed, the plaintiff cannot recover. You will learn a number of affirmative defenses in torts and contracts. For example, contributory negligence by the plaintiff is sometimes an affirmative defense to a claim of negligence against a defendant. Even if the defendant was negligent and this negligence harmed the plaintiff, if the plaintiff's own negligence also contributed to the harm, then, in some states, the plaintiff cannot recover. When you learn an area of substantive law, you learn what constitutes a cause of action and then what can count as an affirmative defense. In general affirmative defenses have to be proved by the defendant, while the burden of proof is on the plaintiff for the cause of action.

Affirmative defenses sometimes rely on facts concerning which there might be disagreement. If there is disagreement over these facts in the pleadings, then the case cannot be disposed of during the pleading period. But sometimes the defendant introduces an affirmative defense, such as statute of limitations, that relies on facts concerning which there is no dispute. If so, then the defendant can get the case dismissed during the pleading period.

The final defense is one that involves the defendant's denial of one or more factual allegations by the plaintiff that are needed for the plaintiff to state a cause of action. This is sometimes called a negative defense. For example, if the salesman stated in his answer that he never said that the computer would have Windows 8, that would be a negative defense.

B. Responsive pleadings to counterclaims, cross-claims, and impleaders.

A party served with a counterclaim, cross-claim, or impleader responds in a manner analogous to the defendant's response to the plaintiff's complaint outlined above. He admits or denies the factual allegations in the counterclaim/cross-claim/impleader, and offers defenses. And he has the possibility of joining new parties and claims himself (subject to the joinder rules and the restrictions of personal jurisdiction, subject matter jurisdiction and venue). All this restructuring of the lawsuit through the introduction of new parties and new causes of action generally takes place during the pleading period.

C. The defendants' answer in your case.

Let's assume that the defendants bring no counterclaim, cross-claim or impleader. All they do is serve you with an answer. It denies your factual allegation that the salesman said that the computer would have Windows 8. Notice that the defendants don't claim that the New York actions be dismissed for failure to state a claim. They must think that if what you say were true, it would add up to a cause of action under New York contract and fraud law. Keep in mind that we are ignoring for the moment any defenses the defendants might have for lack of personal jurisdiction, subject matter jurisdiction or venue.

D. Amendment and supplemental pleadings.

What if you want to change a pleading after the end of the pleading period, because you forgot a cause of action, a defense, or a new party? We will look at the rules concerning amending pleadings and adding supplemental pleadings. They can bring up some difficult issues, especially concerning statutes of limitations. If the new cause of action brought in is beyond the statute of limitations, but it would have been within the limitations period if it had been put into the original complaint, sometimes the new action is not barred by the statute of limitations, but sometimes it is. This is an issue we will address.

You are now through with the pleading stage. Those causes of action that can be dismissed without resolving disputes concerning the facts have been dismissed, and the contours of your conflict with the defendants have been identified. You are now in the post-pleading, pre-trial phase, usually known as the discovery phase.

VI.

The Discovery Phase.

A. Motions for judgments on the pleadings.

After the pleading period is over, it may become evident to either the plaintiff or the defendant that, just on the basis of the pleadings, a judgment can be made in favor of either the defendant or the plaintiff. For example, the defendant may not have denied any factual allegation made in the complaint that is relevant to the plaintiff's ability to receive judgment in his favor. If so then there is no need to go to trial -- the court can issue a judgment for the plaintiff. The plaintiff will make what is known as a motion for a judgment on the pleadings. Likewise the plaintiff may have failed to state a cause of action. Instead of making a motion to dismiss for failure to state a claim, which is generally made during the pleading period, the defendant too can make a motion for a judgment on the pleadings.

No motion for a judgment on the pleadings seems possible in this case.

B. Discovery.

In general resolution of the dispute cannot be made on the pleadings. Some inquiry into the evidence that each side has in favor of its case is needed. The beginning of this process of inquiry is the discovery period.

Before the discovery period begins the parties are usually required to meet to work out a plan for discovery, including deadlines for various forms of discovery. This meeting is often called a "meet and confer." The court then often has what is known as a scheduling conference, during which it discusses with the parties their attempts to arrive at a plan for discovery. During this and other pretrial conferences, the court may pressure the parties to settle. The court then issues a scheduling order, which sets out a timetable for discovery.

During discovery each party makes certain requests for information from other parties or from witnesses. One of the most common discovery requests is the deposition of parties or witnesses. The person deposed, the deponent, is questioned under oath by lawyers through direct and cross-examination, somewhat like would occur at trial. This is transcribed.

Another very common method is written interrogatories, which are written questions addressed to parties to the suit, asking for written responses. These are usually answered very formally with the aid of that party's counsel. They are usually good only for getting general information, not to trick up an opponent, since he has so much time to answer.

Another very common discovery method is the document request. Another is the request for admission, which is a formal request of a party that he admit to something, so that it need not be proved during trial. (Technically this isn't a discovery request, but a means of extending the admissions that occur during the pleading period into the discovery period.)

Just because material is not admissible during trial does not mean it is not discoverable. Nevertheless there are some important restrictions on material that can be obtained during discovery. The most important are certain privileges, including the attorney-client privilege and what is known as the work-product privilege. Much of the work of a junior litigation associate at a big law firm consists of going through documents to determine whether they are privileged or not.

In addition to looking at methods of discovery and some privileges, we will also look into the rules governing objections to improper discovery requests, sanctions for not complying with proper discovery requests, and rules concerning abuse and fraud during discovery.

Under the Federal Rule there are also currently rules requiring disclosure to the other side of relevant, non-privileged materials without the need for a discovery request. We will discuss these disclosure rules as well.

Let's say that the discovery in this case consists of a deposition of the salesman and a deposition of you. In his deposition the salesman denies ever having said that the computer would have Windows 8. In yours, you spell out what happened that day (including the fact that he did say that the computer would have Windows 8).

C. Summary judgment.

Even if there are conflicting accounts in the pleadings, it is often possible for a court to issue a judgment in favor of the plaintiff before trial because, given the information obtained during discovery, a jury would be irrational to find in favor of the defendant. Likewise a judgment can sometimes be issued in favor of a defendant before trial because, given the information obtained during discovery, a jury would be irrational to find in favor of the plaintiff. This is known as summary judgment. Summary judgment is an extremely common and very important way for a case to be disposed of prior to trial. We will spend a good deal of time on it.

Let's say that you and the defendants move for summary judgment in this case. None of you should get it. (Any idea why?)

D. Pretrial conferences and pretrial disclosure.

Finally, if the case is not disposed of through summary judgment, there is a pretrial conference during which the parties work out what each side will try to prove at trial. Prior to the conference each side has disclosed to the other whom they will call as witnesses as well as other evidence they will introduce at trial. There are some witnesses and evidence that need not be disclosed, however. After the conference, the court issues a pretrial order spelling out the order of witnesses and the presentation of documents and other forms of evidence.

VII.

Trial

A. The jury.

You now go to trial. The first question is whether you get a jury or judge. Since you are in federal court, this is a matter determined largely by the Seventh Amendment. Of course, Congress can provide you with a right to a jury for certain causes of action by statute if it wants. In such a case, the Seventh Amendment inquiry is not needed. But let's say that there is no such statutory grant of a right to a jury. You will still have a right to a jury if it follows from the Seventh Amendment. Even if you have such a right, however, under the Federal Rules you will not get a jury if you did not serve the other parties with a demand for a jury within a certain period of time. Usually the demand for a jury is part of the complaint or answer.

Let's assume that you have a right to a jury and that you made a timely demand for one. A jury will then be impaneled. Prospective jurors are questioned by the judge and the lawyers concerning their possible biases. This process is called voir dire. Jurors can be challenged and excused for cause, on the basis of a number of overriding reasons for excusing a juror (for example his knowing a party or one of the lawyers), or a party (or his lawyer) can exercise one of a small number of peremptory challenges, for which no reason need be given.

B. The trial.

At this point your lawyer will make an opening statement, during which he will describe what he hopes to prove. The defendants' lawyers can make opening statements at this point as well or wait until the point at which they present their evidence.

After the opening statements, your lawyer will call your witnesses. They will first be questioned by your lawyer (this is called the direct examination) and then be questioned by the defendants' lawyers (this is called the cross-examination). Re-direct and re-cross examinations are also possible. Exhibits, in the form of documents or other things, will also be presented to the jury through the witnesses, who identify them.

There are many ways that testimony or other evidence can be objected to. The grounds for objection to evidence are the rules of evidence, and they are so complicated that an entire course is devoted to them. But you will be exposed to some very rudimentary evidence law in this course. The most important ground for objection for our purposes is hearsay. We will spend a bit of time on the hearsay rule.

After your lawyer has presented all your evidence, and your lawyer rests, the defendants' lawyers will probably ask for a directed verdict. In federal court this is known as a motion for a judgment as a matter of law. The standard for such a judgment is basically the same as the standard for summary judgment. The defendants will get such a judgment in their favor if no reasonable jury could find for you on the basis of the evidence you presented at trial. Let's say that this is denied.

At this point the defendants' lawyers present their witnesses and other evidence. After they rest, all the lawyers are likely to ask for a judgment as a matter of law. If they are denied, the lawyers will make their closing arguments and the case goes to the jury.

C. The verdict.

At this point the judge will instruct the jury concerning what they must find in order to render a verdict for the plaintiff or the defendant. In a civil case the burden of proof is upon you, the plaintiff. In other words, if you do not satisfy the standard of proof with respect to every element of a cause of action, the jury must find for the defendant with respect to that cause of action. But the standard of proof is lower in civil cases than it is in criminal cases. Usually the jury must find only by a preponderance of the evidence that each element of a cause of action is satisfied. That means that it must find only with respect to each element that it is more probable than not that it was satisfied.

The jury then deliberates and renders its verdict. What type of verdict is asked of the jury depends upon the judge. A general verdict merely asks, with respect to each cause of action, whether the defendant is liable or not liable. This means that the jury must apply the law as well as determine the facts of the case. A general verdict with interrogatories, will ask for a general verdict as well as asking specific questions concerning the facts, to determine whether the jury applied the law correctly. Finally, a special verdict will ask from the jury only its conclusions concerning the facts of the case. How these factual findings determine liability, given the law, will be up to the judge. In federal court, unless the parties agree otherwise, the jury must be unanimous. But in many states a nonunanimous verdict in a civil suit is allowed.

Let's say that the jury renders a general verdict in favor of the defendants.

D. Judgment, execution and post-trial motions.

After the jury renders its verdict, the judge will issue a judgment (in this case, for the defendants). Often costs are awarded to the winning party. These do not include attorney's fees -- only generally small costs such as filing fees and witnesses' travelling costs count. Attorney's fees are usually not recoverable.

At this point, you may make a motion for a judgment as a matter of law again (in state courts this is sometimes called a motion for judgment notwithstanding the verdict). In doing so, you are basically saying that the jury was irrational in coming to a verdict against you. If you believe that there were certain legal errors during the trial that require a do-over you may also make a motion for a new trial.

Once the judgment is issued for the defendants, the case is typically over except for appeal. But if there is a judgment for the plaintiff, a great deal may still have to happen, either in that court or elsewhere. Let's say that you got a judgment in your favor for breach of contract against the store and that you received compensatory (but not punitive) damages of $1000. This award of damages is not an injunction to the defendant. It is not a command backed up by sanctions. If it were an injunction, the defendant's failure to abide by it would put him in contempt of court. But since it is a damage award, you have to get it enforced if the defendant does not willingly pay up. There are two ways that this can be done. You could ask for a writ of execution from the court that entered the judgment, which may order that the defendant's property be attached or his wages garnished. An alternative to a writ of execution is for the plaintiff to simply bring a completely different suit, possibly in a different court system. This is known as a suit on the judgment, and it akin to an action to enforce a debt.

VIII.

Appeals

How can you challenge the judgment if you disagree with it? One possibility is to return to the court that rendered the judgment and make a motion to set aside the judgment. There are, in very rare cases, grounds for setting aside a judgment in a case in which one actually participated. But, in general, someone who participated in a suit and lost cannot get the judgment set aside. A motion to set aside a judgment is most often used when one lost because of a default (that is, because one did not show up).

But judgments can often be appealed. In general, on appeal only legal issues and not factual findings can be assessed. You cannot appeal simply because you did not like the way the jury decided (although many people try). Instead there has to have been a legal error. But an appeal of a judgment on the grounds that no reasonable jury could have arrived at such a verdict is a question of law rather than fact. So if the evidence is utterly insufficient for the judgment, you can still get the judgment reversed on appeal.

Only certain decisions by trial courts can be immediately appealed. Whether a decision can be immediately appealed is a question of appellate jurisdiction. In general only final judgments can be immediately appealed. What this means is that even if the judge made an erroneous ruling during trial (say concerning the admission of evidence), this ruling is not appealable because it is not a final judgment. You can challenge that ruling only by appealing a final judgment against you when (and if) that comes and saying that the judge's error was the cause of your loss. If the error was harmless (that is, it didn't affect the outcome of the trial), then you are out of luck.

The court's denial of your motions for summary judgment and for judgment as a matter of law were not final judgments when they were made (because the case continued on after them) and therefore were not immediately appealable. Only when there was a final judgment entered against you and in favor of the defendants was appeal possible. Immediate appeals of certain orders made during trial are sometimes possible however. These are known as interlocutory appeals. But in general only final judgments are appealable.

The appellate court either affirms, reverses, or modifies the judgment of the trial court. If it reverses, it may order judgment for the appealing party or remand the case to the trial court for a new trial.

In the federal court system there is a right of (nonfrivolous) appeal to the Court of Appeals. But the Supreme Court is very picky about what cases it hears. It will hear a case only upon granting a writ of certiorari (often called cert). Just because the Court of Appeals got things wrong does not mean that the Supreme Court will grant cert. The issue in general has to be one concerning which there is a split between the circuits, making clarification by the Supreme Court necessary. State supreme courts sometimes have a system similar to cert. The appeal from the state supreme court to the U.S. Supreme Court of decisions involving federal law also requires the grant of cert by the U.S. Supreme Court.

Let's say that you appeal the judgment against you to the Second Circuit Court of Appeals on the grounds that only an irrational jury could have decided in favor of the defendants. The Second Circuit rejects your appeal on the grounds that the jury simply decided to believe the salesman rather than you. There is nothing irrational about that. The Supreme Court denies your petition for cert. The process of litigating this case is over. You lost.

IX.

The Preclusive Effect of Judgments

What does this judgment against you mean? Can you relitigate the same causes of action in a new court? If you could, there would be little purpose to litigating at all. The loser could simply start the process over again. The fact that your judgment is final and binding is termed claim preclusion. It will bar you from bringing the same causes of action against the same defendant again.

Furthermore, claim preclusion will generally bar you from bringing against the same defendant other causes of action that are sufficiently related to the cause of actions that you did bring. Just how related they have to be we will explore. For example, if you decide that you should have sued the store under the theory of promissory estoppel rather than contract, you are probably out of luck. You get only one chance to formulate your theory about why what the store did was a violation of the law.

Claim preclusion applies even if the prior judgment was in your favor. If you have a theory about why you should get even more relief from the defendant under a new cause of action, you will nevertheless be barred if there is a sufficiently close relationship between the original and the new cause of action. We will spend a good deal of time on the requirements for claim preclusion to apply, who can employ it, and against whom it can be asserted.

A prior judgment can have preclusive effect of another sort as well. The determination of issues that were fully and fairly litigated can under certain circumstances bind a party to that litigation even concerning causes of action that are not claim precluded. This is called issue preclusion. For example, let's say that the salesman goes around town saying that you are a liar, because you falsely claimed that he said that the computer had Windows 8. You want to sue him for slander. Such a suit is not barred by claim preclusion. (Why we shall see later.) But you will be unable to win the suit because the salesman will be able to bar you from relitigating the issue of whether he said that the computer had Windows 8. It was determined in the earlier suit that he didn't say that. This is issue preclusion. We will spend a good deal of time on the requirements for issue preclusion and who may assert it against whom.

Personal Jurisdiction

Throughout our description of our suit, we have been assuming that the action could be brought in the Southern District of New York, without considering whether this is an appropriate place for the suit. Now that you have some familiarity with what a suit is, it's time to consider this issue.

Imagine that you could sue a defendant in any state court that you wanted too. There are at least two problems with such a rule. First of all, it could be grossly unfair to the defendant. Imagine that you chose to sue the computer store in state court in Alaska, a place where it has utterly no contact. The store's representatives, its lawyers, and its witnesses would have to go to Alaska. It might find this so burdensome that it would not show up and so would default (that is, lose the case by not defending itself). Second, the state court is an arm of the government of the State of Alaska. Its taking the case can be thought of as its asserting power over the defendant. Why does Alaska have that right given that the computer store has no contact with Alaska?

The question of whether a court can legitimately assert control over a defendant in a case is a question of personal jurisdiction. Personal jurisdiction must be found for each cause of action against the defendant. Just because a court has personal jurisdiction over the defendant for one cause of action against him does not mean it has personal jurisdiction for all causes of action against him. However, sometimes a person's contact with a state is so pervasive that there is indeed personal jurisdiction over him for any cause of action.

Let's say you want to sue your defendants in state court in Virginia. How would you determine whether there was personal jurisdiction? The rules governing personal jurisdiction in state courts generally have two sources: the Fourteenth Amendment of the United States Constitution and state law.

A state court's assertion of personal jurisdiction can be a violation of the 14th Amendment, insofar as it is the deprivation of life, liberty or property without due process of law. But what is this "due process" test for personal jurisdiction? The general idea is that there must be some presence by the defendant in the state asserting jurisdiction or some act by the defendant that reaches out to that state. (We will spend a good deal of time on fleshing this out.)

Even if jurisdiction satisfied the Fourteenth Amendment, state law may not allow for the assertion of jurisdiction. States usually have statutes concerning when their courts can assert personal jurisdiction over out-of-state defendants. They are called long-arm statutes. In discussing personal jurisdiction in state courts, we will primarily discuss Fourteenth Amendment due process.

Let us assume (as is surely the case) that your actions cannot be brought in Virginia state court, because it would violate the due process clauses of the Fourteenth Amendment and because it would violate Virginia's long-arm statute.

What about if it is a federal court in Virginia that is taking personal jurisdiction? In this case the relevant provision in the U.S. Constitution is not the Fourteenth Amendment, but the Fifth Amendment. If personal jurisdiction by a state court in Virginia is a violation of Fourteenth Amendment due process, it does not follow that personal jurisdiction by a federal court in Virginia is a violation of Fifth Amendment due process. It is probably the case that a federal court in Virginia would not be violating the due process clause of the Fifth Amendment by asserting jurisdiction over the case. This is because a federal court is an arm of the United States and the defendants clearly have sufficient contact with the United States.

But under the Federal Rules of Civil Procedure (specifically Rule 4(k)), the scope of the personal jurisdiction of federal courts is limited to what it would be if they were state courts (with a few exceptions that we will deal with). Thus in general a federal court in Virginia can assert jurisdiction over the defendants only if a state court in Virginia would. So a Virginia federal court probably can't take the case either. (Why do you think Fed. R. Civ. P. 4(k) was enacted?)

So no matter whether you sue in state or federal court it is likely that you cannot sue in Virginia. It was therefore a good idea to sue in New York after all, where there surely is personal jurisdiction over the defendants for each cause of action.

XI.

Due Process Limits on Service

The due process clauses of the Fourteenth and Fifth amendments can also put restrictions upon the method of service. An obvious example of a federal court's violating Fifth Amendment due process would be its not requiring that a plaintiff make any attempt to notify a defendant that there is a suit against him (such that the plaintiff wins by default). Trial without any attempt at notice to the defendant is clearly a violation of due process. The procedural rules in state and federal court concerning service must satisfy due process in order to be constitutional.

XII.

Venue.

There is a further limitation that makes sure that an appropriate place within a court system is chosen even if there is personal jurisdiction. This is called venue. In general, venue must be satisfied for each cause of action. New York has statutes determining which trial court in the New York state court system is the most appropriate for the suit if it is brought in that system, and Congress has passed statutes determining which federal district is appropriate if the case is brought in the federal court system. We will look at the venue rules for federal courts in this class. It was a good idea to sue in the Southern District of New York, since that district will satisfy the relevant federal venue statute.

XIII.

Subject Matter Jurisdiction

Notice that we assumed that you could sue in federal court. In doing so, we assumed that your actions had federal subject matter jurisdiction. It is now time to address that issue explicitly.

A. State court are courts of general subject matter jurisdiction.

The question of whether a case is in the correct system of courts is a question of subject matter jurisdiction. State courts are courts of general subject matter jurisdiction. What that means is that they can address almost any kind of case, whether it is brought under state law (including the law of another state or even the law of a foreign nation) or federal law. Occasionally Congress will pass a law saying that only federal courts can address suits brought under that federal law (this is called exclusive federal jurisdiction), but that is the exception rather than the rule. In general, state and federal courts have concurrent jurisdiction over actions brought under federal law, which means that such suits can be brought either in federal or state court.

B. Federal courts are courts of limited subject matter jurisdiction.

Federal courts, in contrast with state courts, are courts of limited jurisdiction. What that means is that only certain types of cases can be addressed by federal courts. Why is that so? A federal court's taking a case is an act by the federal government. Therefore it must be within the constitutional power of the federal government. Article III, § 2 of the U.S. Constitution addresses the judicial power of the United States, that is, the types of cases that federal courts can deal with. There are three types that are most important to us. The first two are federal question jurisdiction and diversity jurisdiction.

1. Federal Question and Diversity Subject Matter Jurisdiction.

Federal question jurisdiction allows federal courts to take cases "arising under [the] Constitution, the laws of the United States, and Treaties made." What this means, roughly, is that if a question of federal law is at issue in a suit, it is constitutional for a federal court to take the suit. Diversity jurisdiction allows federal courts to take cases "between citizens of different states," even if the case is one brought under state law alone. The idea is that if there are people from different states on either side of a suit, then it is constitutional for a federal court to entertain the suit. Diversity jurisdiction was created to allow a more neutral forum than the state courts for suits between in-staters and out-of-staters, although one could argue that it is poorly drafted if that is its purpose.

But the U.S. Constitution is not the end of the inquiry concerning federal question or diversity jurisdiction. Article III simply spells out the furthest federal courts could go in asserting subject matter jurisdiction. That does not mean that federal courts will. In general the decision of whether federal courts will assert subject matter jurisdiction is up to federal statutes. (For example, under 28 U.S.C. § 1332, diversity cases must have an amount in controversy of over $75,000.) We will address these statutes in great detail in the course. The federal statute governing federal question cases is 28 U.S.C. § 1331. Notice that each cause of action must have its own source of subject matter jurisdiction.

For reasons that will be made clearer in class, your actions under New York tort and contract law do not have federal question jurisdiction and so they can't make it into federal court under that form of jurisdiction. Another source must be found for them. One possibility is diversity jurisdiction. After all, you are from Virginia and the salesman and company you are suing are from New York. Or are they? How do you determine what a person's or a company's citizenship is for the purpose of diversity? We will deal with this issue in great detail.

Let us simply assume that the defendants are New York citizens. Other problems arise. What about the restrictions on diversity that have been added by Congress in § 1332? The amount in controversy may not be over $75,000. Can you add up what you are asking for and what your friend are asking for to get over the $75,000 limit? Is your request for punitive damages sufficient to satisfy the amount in controversy requirement? We will deal with these and other issues too.

2. Supplemental Federal Subject Matter Jurisdiction.

Let us assume that you can use diversity, because the amount in controversy requirement is satisfied. It is worth noting, however, that there is another form of jurisdiction that may bring causes of action into federal court even if they do not have federal question or diversity jurisdiction. It is called supplemental jurisdiction and it can allow a closely related cause of action that has no independent source of federal subject matter jurisdiction to be brought into federal court on the coattails of a cause of action that does have federal subject matter jurisdiction.

What is the constitutional source of supplemental jurisdiction? Remember, the U.S. Constitution limits what kinds of cases a federal court can take. How is supplemental jurisdiction compatible with the Constitution? It isn't mentioned explicitly in Art. III, § 2.

The constitutional reasoning for supplemental jurisdiction is that Art. III, § 2 says that the federal judicial power will extend to all "cases" falling under federal question jurisdiction or "controversies" falling under diversity jurisdiction and a case or controversy include causes of action closely related to the cause of action that has federal jurisdiction. We will spend time on just how closely related they have to be in this course, but the very general idea is that the actions with supplemental jurisdiction concern the same event as the action with its own source of federal jurisdiction.

But here too Congress has chosen to limit supplemental jurisdiction by statute. We will spend time on this statute, 28 U.S.C. § 1367, as well. It is very complicated.

3. Removal.

What if you sue in state court and the defendant wants the case to be in federal court? Under certain circumstances the defendant can remove the case to federal court. But there are some limits to the power of the defendant to remove. We will discuss Congress's removal statute in the course. But you should be aware that if you sue in state court, you may find the case ends up in federal court anyway.

XIV.

Litigating Personal Jurisdiction, Venue and Subject Matter Jurisdiction

You will remember that a defendant offers the defenses of lack of personal jurisdiction, subject matter jurisdiction or venue in his answer or in a pre-answer motion and can, at times, waive some of these defenses.

It is also possible to argue that an action lacks personal jurisdiction or subject matter jurisdiction after one has lost and the plaintiff is now bringing a subsequent suit on the judgment. This is known as a collateral attack. A defendant who actually defended the original suit and lost (that is, someone who did not default) cannot generally bring such a collateral attack in a subsequent suit on the judgment. If he makes these defenses before the original trial court and it wrongly rejects them, his proper avenue is direct appeal of these denials. But if the judgment was the result of a default, and the plaintiff then brings a suit on the judgment, the defendant can collaterally attack the original judgment by claiming that it lacked personal jurisdiction or subject matter jurisdiction.

XV.

The intersection between joinder and personal jurisdiction, subject matter jurisdiction and venue.

Joinder of persons and claims is complicated by the requirements of personal jurisdiction, subject matter jurisdiction, and venue. For each cause of action you bring as a plaintiff against each party you must ask yourself 1) is it allowed under the joinder rules 2) is there personal jurisdiction over the defendant concerning this cause of action, 3) if you are in federal court, is there subject matter jurisdiction for this cause of action, and 4) is there venue for this cause of action? A cause of action for which you have subject matter jurisdiction, venue, and personal jurisdiction can be knocked out because of the joinder rules. Furthermore the joinder rules can require the inclusion of a cause of action for which there is no personal jurisdiction or subject matter jurisdiction or venue, leading the causes of action to which it must be joined to be knocked out of court as well.

Class actions and interventions too must in general satisfy personal jurisdiction, subject matter jurisdiction and venue requirements. In addition, counterclaims, cross-claims and impleaders must, in general, satisfy personal jurisdiction, subject matter jurisdiction and venue.

XVI.

Substantive Common Law Making by Federal Courts

Some of the New York state substantive law you chose to sue under was common law, that is, law that was made up out of whole cloth by a court. A curious question is what gives state courts this law-making power. There are generally no explicit state constitutional provisions giving state courts this power.

In general, the constitutionality of state courts' powers to make substantive common law has been justified on the basis of the fact that colonial courts had the power to make such law before the colonies enacted their state constitutions. Since the state constitutions did not choose to take away the courts' powers to make substantive common law, this power must be acceptable under the state constitutions, despite the fact that it seems like a usurpation of law-making authority from the state's legislative branch.

Although there is no federal common law that you are suing under, you might wonder what about the status of such law. Is federal substantive common law constitutional? Notice that federal courts did not exist until they were created by the U.S. Constitution, so one cannot say that the U.S. Constitution simply assumes that federal courts had the power to make substantive common law. The issue of federal courts' powers to make substantive (and procedural) common law is an important one in this course.

It used to be common for federal courts to come to their own conclusion about the substantive common law in diversity jurisdiction cases. This meant that there were in effect two bodies of substantive common law that could be used to adjudicate an event in the courts in a state. You would get the common law as interpreted by federal courts if you sued in federal court using diversity subject matter jurisdiction and the common law as interpreted by a state's courts if you sued in state court. This created great pressure on plaintiffs to generate diversity jurisdiction when the federal interpretation was more favorable. Federal courts were held to have this power to come to their own conclusion about the common law in diversity cases until an important case, Erie Railroad v. Tompkins, 304 U.S. 64 (1938), decided that they had no such power under the U.S. Constitution. The meaning of Erie will be discussed in this class.

XVII.

The Sources and Validity of Federal Procedural Law in Federal Court

A. Federal procedural common law.

In talking about how your case would proceed in federal court in New York, I have been talking about a body of procedural law that is applicable in federal court. This includes the Federal Rules of Civil Procedure, certain federal statutes and certain provisions in the United States Constitution (such as Article III or the due process clause of the Fifth Amendment). But it also includes some federal procedural common law, that is, rules of procedure that federal courts have made up for themselves out of whole cloth. For example, the law of claim and issue preclusion concerning the preclusive effect of a judgment of a federal court in a federal question action is federal procedural common law. It is an important question, with which we will deal, why (and the extent to which) federal courts have the constitutional power to create this body of federal procedural common law. It makes sense that federal courts should be able to make up rules that govern how cases procede before them, however -- so it is not surprising that federal courts have this power.

As you can imagine, Erie issues are very difficult when it is hard to tell whether a federal common law rule is substantive or procedural. As we have seen, federal court have the power to make procedural common law. On the other hand, under Erie, they can't make substantive common law, at least in diversity cases. This means that the constitutionality of a federal common law rule in a diversity case can ride on whether it is called substantive or procedural.

B. Federal procedural statutes.

We have also encountered some statutes passed by Congress governing procedure in district courts, such as the venue statute and the federal question and diversity subject matter jurisdiction statutes. These statutes are spelled out primarily in Title 28 of the U.S. Code. Why does Congress have the power to create such statutes? Federal statutes regulating procedure in federal district courts seem like an improper incursion of the legislative branch into the internal affairs of the judicial branch.

To be constitutional, the passage of these statutes must be within the power of Congress under the U.S. Constitution. Congress does not have the power to pass a law on anything it wants. It has only limited powers. Article I, section 8 of the U.S. Constitution lists the areas concerning which Congress has power to pass laws. If Congress passes a law in an area not listed there (or in a few other places in the Constitution, for example in Amend. XIV, section 5), that law is unconstitutional. As it turns out, statutes regulating procedure in federal district courts have been held to be within the powers of Congress. The general reason given is that Congress has the power in Art. I, § 8 to create inferior federal courts (that is, courts lower than the Supreme Court). Indeed it could refuse to create inferior federal courts entirely. For this reason, it is argued, Congress has the power to regulate the procedure of those courts by statute.

C. The Federal Rules of Civil Procedure.

Another source of procedure in the federal district courts are the Federal Rules of Civil Procedure. A very simple example is Fed. R. Civ. P. 3, which states that an action against a defendant is commenced (that is, begins) with the filing of the plaintiff's complaint against the defendant with the federal district court. You will be spending a great deal of time on the Federal Rules of Civil Procedure, which govern many aspects of procedure in federal district courts. (Courts of Appeals and the U.S. Supreme Court have their own procedural codes).

How are the Federal Rules created? In 1934, Congress passed a statute called the Rules Enabling Act, allowing for the Supreme Court to come up with civil procedural rules for federal district courts. These rules are then presented to Congress, and if Congress offers no changes and does not reject them, they become effective.

We have already answered the question of how Congress has the power under the U.S. Constitution to pass statutes regulating procedure in district courts. So it looks like the Rules Enabling Act and the Federal Rules of Civil Procedure created pursuant to it are within Congress's power. But Congress put a number of restrictions on the Supreme Court's power to create Federal Rules of Civil Procedure. If these requirements are not satisfied, that Federal Rule of Civil Procedure is invalid.