Civil Procedure I

22 September

• Next, we'll be going through the complaint with emphasis on rule 12, and the defendant's perspective.
• A couple of comments on the books:
  • Garner is a good book. The theme is reduction of legalese and jargon. Plain English is generally going to be more effective.
  • Fundamentals of pre-trial litigation. This is a hornbook/textbook/treatise. References to arbitration and ADR: we actually will study this about 2/3 through the course. It's a little bit overemphasized here, though, because the author is big in National Arbitration Forum.
• So. Complaint writing. Always ask "why is that there" for each thing you copy in a form. You might decide to keep things, but at least know why you are doing it.
• The signature is more than a formality (Rule 11): it certifies that you've done enough initial investigation that you believe there's a case.
• You want to get the name of the court right. The title includes all the defendants. See, e.g. the Anderson v. Cryovac complaint: the caption barely fits on the page. Once the case gets underway, you don't have to keep doing that. Every document you file will have a caption, but they just say "ANNE ANDERSON, et al."
• Think about the order of defendants and plaintiffs. Long is a good choice. (yay!) Basically, think about the title of the case as a creative opportunity: it's our chance to name the case. It's what will be called out by the clerk, etc. So pick what has a good ring. There is no legal reason to put one first -- it's just a matter of style.
• Rule 10(a) requires a Rule 7(a) designation: that just means what kind of pleading the document is.
• Always also consider who the audience is (that might be the reason for including some of the additional sections). Note that legal beat reporters will be reading complaints as well.
• Clerk: a law clerk (freshly minted lawyer who is research assistant and ghostwriter); vs. a court clerk.
• So, given all the different audiences that will read the complaint, think about the purposes of each section of the complaint. Get rid of things you don't actually need.
• It's not clear that you need a "Parties" section, unless there's a diversity issue.
• So, why so much, rather than the minimalist complaint? Note that Form 11 doesn't require factual support for each of the elements of each cause of action. (p. 306). Well, for one thing, the defendants have to respond to each point: you get more information back in the answer. But answers can still be astoundingly uninformative, so that's not necessarily a help. This also gives us the first shot at describing the case and framing the issue. We can see the relationship between the substantive law and the facts.
• Note that Ponte and Bonamo do not intervene to stop Long.
• Maybe say that venue is proper under 28 U.S.C. § 1391(b)(whatever).
• Note that the more detailed factual allegations are a chance to be persuasive: we can create impressions in the readers' heads. If you leave out important details, the listener has a chance to fill them in: so if you want to put something in their heads, do it. So saying what they did the choking with, for example, makes it clear that a weapon was used.
• Note that the defendant is going to tell the story also. We have the opportunity to speed time up (how quickly the choking started) and slow it down (how long the choking took). More details = slower pace.
• For each fact, why do you have it in there? So, for example: Long continued the chokehold, even though Raheem was already securely held. What is the legal significance of that fact? What are the facts that tell us whether the use of force was proper vs. excessive. We know some restraint was allowed. So was Raheem under control for at least some of the time when he was being choked? If so, that's significant. We want to explain why deadly force was not appropriate at the moment it was applied.
• What about emplotment (don't bury your lead, basically)? This is non-fiction, of course, but it might be interesting to use literary re-ordering. But no matter: these are short facts, and they lead into the causes of action.
• In parentheses after cause of action, mention the defendants, maybe, and then maybe chop it out of the starting sentence.
• Rule 12. Rule 12(b) is a catalog of ways to get a complaint dismissed. 12(b)(6) is the only real substantive one-- the only one we need to concern ourselves with righ now. 12(e) also: we want the defendants to know enough about the incident that they can respond. Anyway, 12(b)(6): we have to have a cause of action, and a reader has to see that they're all there.
• So the factual allegations describe an incident. Maybe that would be enough (the court is supposed to construe these things liberally: a judge ought to know that a choking death by an officer is a § 1983 claim. So why do we need to go and spell this all out so repetitively in the causes of action? Because why make the reader do the work? Why make the judge figure out what the possible legal claims are? And you don't have to be that repetitive, after all. But this is where we couch the facts in the language of the statutes we're concerned about.
• So for Wednesday, we'll be thinking about Anderson v. Cryovac from the defense perspective.
• This complaint maybe could have been a little shorter: there's a lot of redundant language. Sometimes a litany is an effective rhetorical device, of course. Actually, they could maybe have stopped with ¶ 1. Does that state a claim?
• "Damages according to proof:" not putting a numeric demand for damages in the complaint.
• Remember this is also a tort case. a § 1983 case is sometimes called a "constitutional tort" case. We always have to show that the damages we're trying to recover were caused by the defendant's wrong. So: if the element of causation is not there, we've got a problem. That would be a failure to state a claim on which relief can be granted. So look at Cryovac to see if it alleges causation: did the spilling of chemicals into the groundwater cause the plaintiffs' injuries?
• Key takeaeay points:
  • Usually people will do the more extended complaints: there are audiences you need to persuade; no point having the case be a mystery when you file it. A minimalist complaint might make people wonder if you know what you're doing. Also, we're giving info to the reporters.
  • You can't be sued for defamation for things you allege in a complaint: that's a privilege. If you leave facts out, and then say them to the press, and then they turn out not to be true, you can be sued.
  • Want to make an impression on your client and the defense counsel, and to organize your thoughts.
  • There are some form requirements set out in rules; these tend to be bare-bones. The rest of the format conventions are optional/discretionary, so try to know why you're using it: who will be reading it, and what are their needs?

24 September

• Municipal liability:
  This was left out of the little research memo we were given. We also have the elements of a cause of action (handout for today).
• Jury demand:
  Rule 38(d): A party waives a jury trial unless its demand is properly served and filed. (i.e., jury is not the default in civil cases: you need to request it).

  How do we serve and file this demand? See 38(b). You can do it in a pleading, or in a separate thing filed within 10 days. It's in our demand for relief ("trial by jury on all issues so triable", but it should also be in the caption ("demand for jury trial") near the word "complaint."

• Allegations:
  To aver = to allege. An allegation is an (as yet) unproven assertion of facts. Allegations in a complaint: assertions of fact that the plaintiff reasonably believes he can prove.

  We won't always have admissible evidence of everything we say in the complaint. We might have it in hearsay, etc., and we intend to get it via the discovery process (i.e., the plaintiff is informed and believes that the training of the MPD was inadequate in the use of the nightstick). We have some inferences, basically.

  After discovery, the next major phase at which the case can be dismissed is after discovery. The facts, then are in evidence-- it's no longer just assertions. But for a 12(b)(6) motion, at this stage, we're just talking about allegations.

• Remember that in a 12(b)(6) motion, we assume the facts in the complaint are true. The complaint doesn't have to establish causation: it just has to allege it sufficiently. They probably could have stopped the Cryovac complaint after the first paragraph. They should spend more time in their complaint making causation clearer, but they don't need to in orer to survive 12(b)(6). It may look like an uphill battle, but the court would be hard pressed to say that causation couldn't possibly be proved.
• Still, if we have an argueable ground for filing the motion, and we'll get some benefit (maybe educating the judge a bit, e.g.), we might want to file it.
• Certain kinds of cases lend themselves to 12(b)(6) motions.
• Note that not every quesiton in law school is open-ended; some have definitive nuts-and-bolts answers (e.g., deadlines, etc.).
• Pleadings and motions are two different kinds of papers we can file.

  pleading: a statement of claims or defenses

  motion: a request to the court for a legal ruling

• So, for example, we only have to respond within 20 days if we have been served by a process server. So we need to know how the complaint came to us. 60 days is way more common-- there's a time incentive (and a money one) not to go through a process server.
• Local rules. Rule 83 authorizes district courts to have their own rules of practice, as long as they don't override the FRCP. This means we need to look at the local rules.
• Five types of responses:
  1. Not here: jurisdiction, venue, process 12(b)(1)-(5)
  2. So what: failure to state a claim 12(b)(6)
  3. What is your point: more definite statement 12(e) [unusual]
  4. It ain't so: denial (answer) - 12(a), 8(b)
  5. Yeah, but: affirmative defense (answer) - 12(a), 8(c) [it's true, but the law allowed us to act in that way]
• Rule 12 motion: an objection to the complaint, trying to dismiss some or all claimes based on legal or technical deficiencits. Neither admits nor denies the plaintiff's version of facts (i.e., assuming arguendo ...). Must be made before filing an answer. If claims remain after the motion is decided, the defendant must file an answer.
• Answer: a factual response to the complaint. It admits or denies allegations. Does not offer the defendant's case: just admits or denies what plaintiff alleges. Asserts affirmative defenses. No Rule 12 motions after the answer is filed.
• 12(b)(6) motion key points:
  • Argues that the complaint is substantively defective:
    • Missing element of some otherwise legitimate claim
    • Novel legal theory that the court declines to adopt
  • Allegations of the complaint are assumed to be true, but are not admitted by the defendant
  • Can't refer to facts outside the complaint (that's for later); you only get to work with facts inside the complaint
  • Can target any or all causes of action
  • Complaint will be liberally construed
• When a case is remanded for further proceedings, it generally goes back to the same judge whence it came.

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• 12(b)(6): the plaintiff might have filed a complaint that the jurisdiction doesn't recognize.
• Office Memos
  Objective as opposed to persuasive: asks and answers a question, and explains the analysis. There are lots of kinds of memoranda: office memos, memos to the file, memorandum of law (not a full brief, but short analysis of a very specific issue), memorandum decision (the court issues a short opinion on an issue).

  All of these identify an issue or a question, provide an answer, and explain the answer.

  Before we start, identify the audience: what we do in the memo will depend on who we're writing to.

  So first, ask whomever is requesting the memo for a form. We are going to use a pretty basic format:

  • Heading (to: from: date: re:
  • Question presented
  • Brief answer
  • Statement of facts
  • Discussion
  • Conclusion (optional)

  Also think about what the memo is going to be used for: will it be circulated, will it be sent to the client eventually, will it go into the record of the case, etc. What will be done with it, basically?

  So we first say the question presented: what is the issue. A standard form (1 sentence):

  • Under state the law does/will/can/should the issue when some pertinent facts?
  The Garner form is quite different, but this is nice and simple. They also say "short answer" instead of "brief answer." But it is: yes, no, probably yes, or probably no. One of these per question presented.
• There is a sample in the end of the Garner book, p. 165.
• For Prof. Schwartz, we want QP and BA to be a relatively complete statement of the case-- more like Garner, perhaps.
• Make sure QP and BA are tid to the specific case (so the conclusion is not foregone).
• Also make sure you are asking and answering the right question.
• One approach: start with QP, write BA last.
• Write QP and BA: one count of action--negligence-- and 12(b)(6) TYPE THIS UP AND TURN IN Also read chapter 3 in Garner, and pp. 53-85 (ignore the citations section-- § 28 on pp 77.) Don't do the exerises.
• Statement of facts: be economical-- only the facts that are necessary to answering the question (e.g., if the date when something happened doesn't matter, don't put it in there). In the discussion, any fact that gets mentioned should be found in the statement of facts. You can have some additional "glue" facts to keep the story coherent, but don't include irrelevant ones. Don't characterize the facts. Use strong, active verbs and nouns, but wait to make your point until the discussion section.
• Memo writing isn't truly objective writing, but it is analytical, not persuasive.
• Discussion: explain how we reached the conclusion that we did.
  • Introductory ¶ - roadmap. Lay out the structure of the discussion.
  • Rule explanation: set out the relevant law. Synthesis: rules extracted from cases.
  • Rule application: apply those rules to the facts; this should actually be pretty short, and pretty obvious to the reader, if the preceding stuff has been done well.
  • [Can be subdivided into sections (corresponding to QPs and BAs.]
  • Conclusion; unless you decide you need a separate conclusion section. Probably better just to keep this as part of the discussion
• p. 165: note the large-scale organization: elements identified in the BA each get their own sub-heading.
• Don't bother with "as the court noted in," etc. Just say the rule and give the cite.
• Grading criteria:
  QP: does the QP accurately identify the issues? does QP contain necessary and relevant facts?

  BA: does the BA answer the question that was asked? Does it include relevant legal principles and facts?

  Facts: is it lean, and in the writer's own words

  Discussion: is there an intro that states general principles applicable and explains the organizational structure of the memo? Is the organization logical? Is large-scale and small-scale organization appropriate? Are all the relevant rules discussed before they are applied to the facts of the case? Has the writer synthesized the rules? Has the writer used the appropriate authorities, and used them correctly? Has the writer omitted unnecessary authority? Is the discussion logical and supported by authority? Is the discussion of authority complete and logical? Is it clear and precise?

  Style: Are transitions and connecting phrases well used? Need to use topic sentences: limit to one idea per ¶. Use active voice. Avoid legalisms. Write simply. Use proper conventions: spelling, grammar, punctuation, citation. Formatting requirements.

• We will also get grading criteria from Schwartz. The first draft will not be graded.
• Don't say "utilize!"