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What is Civil Procedure?

Everyone who’s seen Law & Order has seen the “sexy” part of being a lawyer. You know what I’m talking about. An attorney gets up there to cross examine the defense’s star witness and just lays into her. At the end of it, the witness confesses to everything, since it’s the most natural thing to do. Then the lawyer drops the mike, zips up his briefcase, and walks out of the courtroom.

But that’s not how it is all the time. What Law & Order doesn’t show you is the other 99 percent of the process. The boring part.

What you’re not told until you get to law school is that the exciting part, the part you see on TV, rarely happens. But that doesn’t mean the attorneys aren’t working.

The real work comes in well before that trial is scheduled, and it can continue long after it’s over. That, my friends, is Civil Procedure.

The Rules of Civil Procedure Govern all Civil Cases

You may have read about torts here. Torts are one variety of civil law suit, and they follow the rules of civil procedure. The course Civil Procedure (or CivPro) will cover how a case is started, carried out, and finished. But, in law school, you really only look at federal civil procedure. Unfortunately, every single state has its own rules. Usually they mirror the federal rules, but sometimes they don’t even come close.

What should I know about CivPro before I go to law school?

Hmm, looking back on my first year, I wish I would have know to drink more Red Bull. Of all the classes, Civil Procedure had some of the most boring cases. Just try and read this one as an example. It’s brutal. I still don’t understand that one …

Other than that, the biggest takeaway you should get from this article is that Civil Procedure a lot like a puzzle. There’s a ton of moving pieces, but if you can keep focused on what you’re being asked to read, it won’t be nearly as bad as I made it out to be. CivPro can really be broken down into a few basic areas:

 

  • Jurisdiction: can the court even hear the case?
  • Pre-trial: what can I do once I file the case in the right place?
  • Post-trial: what can I do if I don’t like the decision?

 

 Jurisdiction

Before any case can even get started, the court needs to have the authority to take the case. This authority is called jurisdiction.

Generally speaking, there’s four kinds of jurisdiction:

  1. Subject Matter Jurisdiction
  2. Personal Jurisdiction
  3. Supplemental Jurisdiction
  4. Removal Jurisdiction

At a minimum, in every single case the Court MUST have both subject matter jurisdiction and personal jurisdiction.

Subject matter jurisdiction means the court has the authority to deal with the claims brought up in a case. It can be broken up into a few categories, but I won’t get into that here. What you need to know is that federal courts can only deal with cases in specific subject areas. Those areas are ones that deal with federal laws, and then others that deal with parties in different states.

If a court has personal jurisdiction over a person, it acts essentially like “the one ring.” It has the authority to bind the parties, or force them to comply with whatever orders it gives. Usually, personal jurisdiction is pretty easy to determine. A lawsuit will involve a party from state A and a party from state B, and the injury happened in state A. The cases get murkier when the defendant, or plaintiff, is a business that sends products into multiple states. What if the plaintiff, who lives in Oregon, just bought a car in Washington from the defendant, and then got into an accident in Idaho because of a defect? If the plaintiff sues the defendant in Idaho federal court, would the court have personal jurisdiction?

The answer is maybe. It depends on how much business the company does, if any, in Idaho. The rule about cases like this comes from the “International Shoe” case. The case, which happened to involve a shoe company (go figure) that was selling shoes in Washington State, though it was based in Missouri. The court in that case said that in order for a state to have personal jurisdiction over a company, that company needs to have “minimum contacts” with that state. To put it another way, the company needs to sell things, or perform services, in a certain state continually. The big test is whether the company, because of its activities in a state, would expect to be sued in that state.

So, back to our car example, if the Oregon car company regularly sold cars to people from Idaho, or perhaps had a small dealership in Idaho, then the court would definitely have personal jurisdiction over them.

The other two kinds of jurisdictions come in other, specific kinds of cases. Supplemental jurisdiction comes in when a party wants to bring more than one claim against the defendant. Removal jurisdiction is an issue when a party sues another party in state court, and the defendant decides he wants to remove the case from state court and transfer it to federal court.

Pre-Trial Procedure

This part of CivPro comes up once the courts have jurisdiction. It ranges from the actual form of the initial filings, to the discovery process that happens prior to trial.

For example, the initial complaint must specifically state the claim, the facts or allegations to back it up, and then whatever relief the plaintiff wants to collect from the defendant. If the complaint doesn’t clearly state the claims, the defendant can file a motion to dismiss the case for, shocker, failure to state a claim.

In addition to stating the claim, the plaintiff must also give enough facts in the complaint to make the claim “plausible.” For years plaintiffs were able to file a bare-bones complaint, with just enough facts included to make the claim just a slight possibility. However, after the Twombly case in 2007 things changed.

Twombly was a federal case that was based on some anti-trust violations in the telecom industry. The plaintiffs alleged that the big telecom companies were engaging in activities that directly put smaller ones out of business. While the complaint did include basic language like the larger companies were agreeing not to compete against each other, the Supreme Court was clear that this was not enough. Now, plaintiffs are required to put enough facts into the complaint to convince a judge that discovery would reveal that evidence.

Post-Trial Procedure

The rules under the post-trial portion of CivPro deal with what parties can do after the trial is over. This would mean appealing a decision, motion to set aside the judgment, or a motion for a new trial. There are a bunch of other things that go in this section, but those are the big ones.

One of the big issues here is when a case can be appealed. The general rule is that a case can’t be appealed until there is a final judgment. That means when the judge issues a decision on the case. On its surface, this is a pretty simple thing to understand. But, like with everything else in law school, it can get pretty difficult. What if the judge grants a motion for injunctive relief, forcing you to stop your business until the case is over? Can you appeal the decision granting the injunction when the case isn’t even close to being over with?

Luckily, the answer, at least for injuctive relief, is that you can appeal that particular decision. But there are other decisions where the parties must wait until the case is over in order to appeal it.

While I can’t cover the entire area of Federal Civil Procedure in this one post, hopefully I’ve given you enough here to at least have a good idea of what to expect when you take the class. Remember, every single case and rule of law will fit into one of these three categories. So, while you will be seriously tempted to get lost in the details, remember the big picture, and you’ll do just fine.

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