Download - American Tort Law Carolyn McAllaster Clinical Professor of Law Duke University School of Law
Horizontal Federalism
Dual system of state and federal jurisdiction
Federal SystemU.S. District Courts (trial courts)US Courts of AppealsUS Supreme Court
50 state court systems
Personal Jurisdiction
Over propertyWhere property is located (in rem) If a debt dispute, where property that is
security for debt is located (quasi in rem)
Over a party If party is located in jurisdiction, orHas certain minimum contacts with the
forum (International Shoe Co. v. Washington, 326 U.S. 310 (1945)
Federal Court Jurisdiction
Federal Question Jurisdiction
Cases “arising under the Constitution, the laws of the U.S., and treaties
Diversity Jurisdiction
Citizens of different statesAmount in controversy is at least $75,000
Federal Rules of Civil Procedure
Govern all civil lawsuits in federal courts (all court trials except criminal and admiralty trials.)
Essentially the same in all the Federal Courts;
State Court rules are modeled after the federal rules;
Pre-trial ProcedureStarting the Lawsuit
Party meets with his/her attorney
After investigation, attorney files Complaint Short & plain statement of jurisdiction Short & plain statement of the facts Demand for relief
Clerk issues Summons (order to respond to complaint or lose the lawsuit by default)
Pre-trial ProcedureDefendant’s Response
Defendant has 20 days to respond to Complaint after service;
Response can be either:
Motion to DismissAnswer
Motions to Dismiss
Grounds for Motion to DismissLack of subject matter jurisdictionLack of personal jurisdiction Improper venue Insufficiency of process Insufficiency of service of processFailure to state a legal claimFailure to include a necessary party.
Defendant’s Answer
Contents of Answer
Admit, deny or state lack of knowledge of allegations in the Complaint;
Raise affirmative defenses to lawsuit;Counter-claims against plaintiffCross-claims against 3rd party
Discovery
Process through which the parties exchange information on “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” (FRCP 26(b))
Privileged information is excluded: communications between certain categories of professionals.
Discovery, continued
Lawyers gather discovery information, not the judge;
Idea is full disclosure of information each side has to promote:Truth-findingFairnessEarlier settlementefficiency
Discovery
Required initial disclosures:
Name and contact information about any person likely to know about the claim or defenses;
Copy or description of all documents to be used in case;
Materials related to how damages are calculated
Forms of Discovery:Depositions
Deposition: sworn testimony of a party or witness
Court reporter is present who “takes down” the testimony.
Lawyers ask questionsTranscript can be used at trial
To impeach witnessesAs testimony of unavailable witnesses
Forms of DiscoveryInterrogatories
Interrogatories: written questions sent to a party to be answered in writing under oath;
Lawyer usually drafts responses within 30 day time limit
Limit: 25 questions including subparts
Forms of DiscoveryRequest to Produce
Request for Production of Documents:Used to request inspection and copies of
documents or for inspection of land;Must specify a reasonable time, place, and
manner of making the inspection and copies;
Response due within 30 days
Forms of Discovery
Requests for Admission/ Order for Physical or Mental Examination
Requests for Admission:Written requests to opposing party to admit facts
that are undisputed.
Can deny admission, but failure to respond results in admission
Order for Physical or Mental ExaminationUsed for party only when physical or mental
health is an issue in the lawsuit.
Summary Judgment
Judge decides case without full trial when there is “no genuine issue as to any material fact and…the moving party is entitled to judgment as a matter of law.”
The Trial
Jury selection (voir dire) Plaintiff’s opening statement Plaintiff’s evidence
Direct and cross examination of witnesses
Defendant’s motion for directed verdict Defendant’s opening statement Defendant’s evidence Closing Arguments Verdict (based on instruction about the law from the
judge.)