Civil Procedure I

6 October

• Public speaking: speed isn't the only factor. You can be effective either fast or slow, as long as it's not a distraction. Rhythm is perhaps more important: speak in phrases, and pause. Information sinks in during pauses: it gives people time to think.
  1. Speak in phrases (putting breaks in is a matter of judgment, but be orderly).
  2. In every phrase, emphasize one or two (in long phrases) words
  3. In the last phrase, walk. ("walking down the stairs"). Make tempo and pause signal the end (like an anchor's sign-off).
  Psusing gives you a chance to think as well. You can think ahead a bit, maybe.
• Drafting an answer
  Do you deny jurisdiction? (i.e., because defendant denies that there is a valid claim under federal law, we deny jurisdiction here). It's an option, but probably not a big deal.

  Subject Matter Jurisdiction is the one affirmative defense you're not required to raise. All others, if you fail to raise them in the answer, they're not available later. Personal jurisdiction objections can be waived, but not subject matter.

  Responding to allegations is different from an affirmative defense. The defendant has two ways to win: failure to prove, and affirmative defense. Note that "failure to state a claim" is not just 12(b)(6): it can also be a kind of affirmative defense.

  Rule 8 (and somewhat Rule 12) list the affirmative defenses. But this isn't necessarily an exhaustive list: you can add things in that don't conform 100%. Lists of defenses tend to be very inclusive it order to avoid accidentally waiving them.

  Read the paragraphs in the complaint carefully: make sure you deny things worth denying (see, e.g., ¶ 1 in the Jackson v. Long complaint).

  Note that complaints will have some things that can neither be affirmed nor denied (assertions of law, e.g., or statements like "plaintiff brings this lawsuit").

  See 11(b)(4): denials of factual contentions must be warranted on the evidence. When you file your answer in court, you are asserting that your denials are either warranted on the evidence, or that you don't have enough information to believe them to be true. Basically, you can't deny things you know to be true. On the other hand, the more the plaintiff characterizes the facts, the more wiggle room the defendant has for denial.

  Responding to ¶ 22. You'd want to interview your clients, at a minimum, and do enough investigation to figure out what you can deny.

  Plaintiffs tend not to tell their stories in answers: just go paragraph by paragraph, and if there are grounds for disagreement, just deny.

• See Kramer (documents filed after eviction from house). WI § 1983 case. And where does this constitutional elemet come from? Because the Sherriff was involved: 4A covers government officials. But he lacks much information about the facts, so he jumps to a conclusion about whether there was conspiracy. Rule 11 comes after him. Ct. App. 7th Cir. says that the degree of information was OK: the info wouldn't be available via pre-litigation investigation. Does this case protect us? What about Kunstler: is that bad for us?
• What would a reasonable investigation look like?

8 October

• Rule 11 analysis: look at each clause in the rule, and run through each allegation with respect to them. This is an important skill.
• What is the standard we have to follow:
  To the best of our knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support, after a reasonable opportunity for further discovery. [we are comfortable that the law is solid, and we're not doing this for an improper purpose]
• Don't leave things out when stating a standard (e.g., that a reasonable inquiry under the circumstances is required). You need to do some reasonable inquiry, or you're in trouble.
• So, did we know enough, based on the videotape and the police report, to file a complaint with those allegations in it?
• Rule 11 is stated in a positive way-- it doesn't state what is forbidden. A rule 11 motion is an argument that the opposing party has breached the warranty stated by the certification of the complaint.
• Is ¶ 25 enough to stand on its own? If it's true, does it cover ¶ 26's allegations?
• Custom, policy, pattern, practice: Monell
• Failure to train: Canton
• Milwaukee gave batons to these officers and never trained them how to be properly careful with them.
• The requirement to do reasonable investigation isn't necessarily a requirement to do things that are obviously futile.
• What about dropping the second cause of action, and losing the city of Milwaukee as a defendant? Well that will change what kind of discovery we can do. What might we want?
• Tell me about all the uses of force in the last five years. How many uses of deadly force were there? Did they result in discipline? Milwaukee will say this is irrelevant to Ofc. Long, if they are not a defendant.
• Why not broaden ¶ 26 from just deadly force to "excessive and/or deadly?" That'll expand the number of cases that we're talking about. Before just doing this, we'll want to do some legal research: can we expand the category of deadly force this way, or will the court find that extraneous?
• On the other hand, doing some potentially futile investigation might help establish that you've made a reasonable effort.
• Consider calling attorneys who have handled similar matters, and they might share some information. Make friends with them.
• What if there were a Rule 11 violation-- what happens then? Cheeseman's efforts in Anderson v. Cryovac was a novel approach-- the 1983 revision to the rules had just come out, and he was trying something cutting-edge. It turns out that Rule 11 motions at this stage are rare: the comments say that Rule 11 shouldn't be used as a tool for disposing of a case on the merits. For that, use Rule 12 or Rule 56. Cheeseman is trying to make Rule 11 substitute for summary judgment. Now, as it turns out, Schlichtman did have a case: he won against Grace at the first stage of trial. Most losing cases aren't Rule 11 violations. Rule 11 is to prevent abuse of the litigation process. So maybe Cheeseman's motion was inappropriate. Lots of Rule 11 motions get filed after cases are dismissed, in fact.

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• Memos are due on the 13th; send both to deborah.moritz@wicourts.gov and Schwartz. By 5:00PM.
• On Wednesday, we may have 1 hour of research and 1 hour of writing. Not known yet. On Wednesday, she will tell us the schedule for returning them. They'll be e-mailed back to us on the morning of the 21st.
• Week of the 22nd, first hour is research in lab.
• Week of 29th, first hour is citation.
• Final draft of the memo is due on the 3rd.
• First draft of brief is due 11/14; returned 11/21. Final draft due 12/19.
• Last discussion class is 11/19.
• We do not have to do a citation copy.
• Procedural posture: we filed a complaint, and we've gotten a 12(b)(6) motion back.
• Go back and review the complaint (i.e., the parts that they are challenging). Make lists of arguments.
• When you first read the brief, of course you think you're going to lose.
• Identify the elements of the two causes of action: are they stated in the complaint? Next, are they stated sufficiently (i.e., what do you need to prove to establish a pattern and practice)?
• 4A - we have to show that a reasonable police officer would not have acted this way. So: they applied reasonable force, and then they exceeded it.
• Note that being a police officer implies that you get training from your employer. Also look: they are intensifying their use of force, rather than reducing it.
• Distinguishing Twombly:
  • Antitrust vs. Civil Rights
  • Conspiracy
  • Leatherman: no heightened pleading standard
  • Rodrigues: the court should apply Letherman, basically.
• We are going to have 2 QPs, two BAs. Thus:

  	I. QP1
  	I. BA1
  	II. QP2
  	II. BA2
  	Discussion
  	  Overview (has things that are common to both)
  	  Deal with QP1
  	  Deal with QP2
  	

• What is common to both? The standard for 12(b)(6). Don't have to do the overview section, but that's a good way to consolidate 12(b)(6) materials.
• Start with Excessive Force, maybe, because without that, there's no point in doing the other. Also, this mirrors the order in the complaint.
• So, our questions: can the facts we've alleged survive a 12(b)(6) motion? Note that defendants start arguing questions of fact.
• Look at rules for E. Dist of WI to see what you can do with unpublished cases.
• Include procedural history with statement of facts; "you have asked me to discuss..." is a good way to end the statement of facts.