Civil Procedure I

8 September

• Anderson v. Cryovac
  Questions from Ann Anderson:
  • What happens if not all plaintiffs agree?
  • How much could we stand to win?
  Answers:
  • We don't have much experience, but it's all executive experience.
  • Case value actually fluctuated throughout the story
  The BS detector: when did we start to get a sense of what the case was actually worth, etc.

  This was a contingency fee firm, of course. Businesses set aside resources for legal representation, but individuals generally don't, so the contingency fee is their only real way of gaining access to legal services. In the US, generally, parties bear their own fees.

  So what does the Schnlichman firm have to think about? We need to figure out of we can mount the case in question. Cost/benefit of expert witnesses (that's sort of an interesting perspective-- are they worth the benefit they provide).

  What is "winning?" Legal merits (applying the facts of our case to some legal rule(s)) vs. moral victory (admission of guilt, e.g.); money paid to public vs. money paid to families.

  We read hundreds of caes, and learn what the law is. We spend less time thinking about what the client wants. Ultimately, our job is to get something for the client. Remedies. There are various kinds, of course, including money damages. When a client asks "what can you do for me," the question is really what remedies can be obtained.

  Side note: Interesting conflict of interest issue: if the company offers some non-monetary settlement that is acceptable to the client, what is the attorney to do?

  So the benefits are remedies. What are the costs? Experts, of course, but also our own fees.

• Meeting about taking the Raheem Jackson case.
  Damages:
  • Punitives
  • Physical/mental stuff
  • Injunction
  • Pre-litigation settlement
  We are not going to win every case, so a sure thing once in a while is a necessary thing. So pre-litigation settlement has appeal in that respect. We might like to diversify our risks.

  This is a high-profile case, which ups the potential awards, but not necessarily the cost of litigation for us. Some folks actually calculated expected earnings. Good to think of damages as having different components: medical expenses, pain & suffering, lost wages, etc.

  Punitive damages are not compensatory; compensatory damages are to put the plaintiff in the position he/she would have been, had the incident not occurred. Punitive damages are intended to punish and deter-- they are a windfall for the plaintiff, in that sense.

  Nice phrasing of precedent: what a court decides on the facts of one case implies a rule that can be applied to other facts.

  42 U.S.C. &sec; 1983 : you can file a civil action for the deprivation of rights-- at law or in equity. So both damages and injunctive relief are possible. This is a statute designed to address people acting in an official capacity.

  You can't have a lawsuit unless someone's rights were violated (tort, contract, criminal, etc.). So we're studying procedural law, but it is always intertwined with substantive law, and the civil rights act is the law for us in our case.

  Note that injunctive relief here might be an option: training for the cops, e.g., and we could still get attorney's fees.

  How do we decide how much to ask for in damages? We could make estimates for attorney time, expert costs, etc. We could look at what has been awarded in similar cases before, but note: all jury awards are made for cases that have already been won.

  On the one hand, an airtight case might suggest that you could ask for more in settlement, but at the same time, the amount in controversy is maybe still not worth the effort. So there's a chance that we could lose. Maybe we want to discount the amount we might expect by the probability that we would lose. That might at least be a way of explaining the settlement request to the other side. Or maybe we want to think in terms of: we have a 40% chance of getting $1M and a 50% chance of getting $500K, and a 10% chance of losing altogether.

  Test juries, mock juries, focus groups: those are expensive, but for some cases you might want to get that information.

• Pre-litigation investigation: that's where we are right now; no formal proceedings are underway. Right now, we're all taking the role of the plaintiff; some of us will be defendants as the semester goes along.
• Books and how to read them:
  1. Rule book: this includes FRCP, but also rules of evidence, etc. Every rule has a rule, and then some historical annotation reflecting the process by which the rules are amended. So, the main rule change for 2007 was stylistic, for example.
  2. Fundamentals of pre-trial litigation: this is just a text book, not a case book. No riddles here-- it just tells you what you should know. And maybe it'll have more of a shelf-life after school.
  3. Supplement: includes cases, litigation documents, other fun stuff.
  4. Legal writing in plain English: different from all the others courses' books.
• Get signed on to the course web site. The idea of that page is twofold. First, all class handouts, etc., will be there. There are also various different content areas, including the Raheem case file, which will accumulate over the semester.
• Where are we going from here: we are going to take the Raheem case. Two important things. First, in order to get a case ready to file a lawsuit, focus on your opening statement. That's a way of projecting where we're going-- it'll tell us where all this is leading to (even though 95% of cases settle), so we can direct our efforts, and identify gaps. Then start forming the lawsuit: the six journalist questions turn out to be the things we need to answer, in detail, in order to flesh out our suit.

10 September

• Public speaking as a matter of technique: gestures can convey the thrust of an idea. Even standing at the podium, the gestures open you up more and make you sound more confident.
  • The give
  • The show: an amount
  • The chop: a point
  • Use pauses, locate ideas spatially
• Back with remedies. Case analysis.
  • Theme: one sentence "heart and soul" of our case. This is part of the trial lawyer's art-- persuasion begins here. We want the most compelling way to present the case in one sentence: we can't tell the whole story-- we want to invoke and draw on images and memes from outside. It might not even be a grammatical sentence (e.g., "big bad corporate polluter"). Find phrases that trigger some sort of cultural reference point.
  • Theory: the story of the case mapped onto the substantive law. This is the narrative or story that we want to tell. We have to tell the facts, but they have to also reveal the law (i.e., that the choking was an unreasonable seizure).
• We're moving towards writing the complaint.
• Themes:
  • When police get in a situation where their power is challenged, people get killed.
  • Police brutality resulted in a teenager's death.
  • Raheem Jackson should not have died at the hands of MPD, and they should make it up to his family.
  • Police kill an innocent man by using unnecessary lethal force to end a racial brawl.
  • Felons should be in jail, not dead before arrival.
  • What happened to innocent until proven guilty?
  • Promising young life cut short
    This calls up a cultural story.
  • the police should have restrained him, not killed him
    Let's tinker with that one... The police were trained to restrain him, not hang him.
• We're always aiming toward a trial, even though it's unlikely we'll get there. The reason is that what the trial looks like will be our guide throughout the case.
• Formation of a civil suit:
  • Who: the parties-- who sues, and who is being sued. Superficially, Raheem v. police. Can a dead guy sue? Do we look at just the guy with the baton, or the organization that gave the baton, or the other officers as well?
  • What: substantive law-- what rights have been violated?
  • When: statutes of limitations-- by when must we file this complaint? Every legal claim has to be brought within a certain amount of time. This will vary by state and by type of claim.
  • Where: jurisdiction-- in which court(s) can we file our suit? This is complex, and we have to pick one. Civ Pro II (et al.) deal with much more jurisdiction theory.
  • Why: remedies-- what are we trying to achieve for the client?
  • How: procedure/proof issues-- how do we structure the case, and prove it? How will we get the videotape into evidence, and how will we rebut the defendants' assertion that they were following procedure? What questions do we want to get answered in discovery? What evidence do we need?

Substance	Procedure
Right to be free from harm Right to have contracts enforced Rights to property E.g.: torts, contracts, copyrights, civil rights/liberties	Rules of dispute resolution (disputes arise when rights are allegedly violated) Procedural rights (e.g., right to a trial, etc.) Due process: process that the law requires E.g.: rules of evidence and procedure
Remedies span both of these: they have both substantive (damages, injunctions that vindicate rights) and procedural aspects (how we get them via the legal system, as opposed to self-help)

• OK, so whom will we sue, and for what remedies? Compensation harm, punishment for wrongdoing, and injunction.
• Our client is Lewis Jackson; why does he have anything to say here? Has he suffered? "Damage from losing a child." Emotional harm. Burial costs.
• There are also injuries to the community at large: risk of other such incidents.
• Estate-- it doesn't seem fair that Raheem could only sue if he survived. A legal claim entitling him to damages might be a kind of an asset. Here we've got medical costs, the costs of the injury: future earnings, pain & suffering. The law authorizes someone to act on behalf of an estate (when the victim can't be a plaintiff because of death, infancy, etc.): suing in a representative capacity.
• Lewis and Raheem both suffered, but differently. They might each have a claim. Every specific victim who suffers a specific harm is a potential claimant. Lewis will be able to sue in more than one capacity: on his own behalf, and as representative of his son's estate. Each has different claims, though, and will merit different remedies.
• Plaintiff <----> Remedy <----> Defendant
• Note that in order to get a given remedy (e.g., an injunction to cause the police depatment to require additional training for officers about lethal force), you need to be suing a defendant who is in a position to deliver the remedy that you want. So: is the defendant both legally and practically capable of delivering the remedy sought? We need to find defendants who fill both these qualifications; sometimes this requires some artfulness or creativity.
• Handout 1: police report, monday sign-up
• Handout 2: jurisdiction worksheet
  1. MA state court personal jurisdiction
     • Anne Anderson: yes (resident, and filed there, which indicates consent)
     • Unifirst, City of Woburn: yes (residents)
     • Grace and Beatrice: Yes, by long-arm statute-- pretty much all provisions of the MA statute apply
  2. Other state courts personal jurisdiction: yes, probably every state has jurisdiction over Beatrice and Grace (by long-arm statute), and Anne Anderson by consent. So you could maybe file anyplace in state court
• When state courts say they've got general jurisdiction, they mean it: they'll even decide questions of other state law, apparently. It's rare, because of personal jurisdiction and venue issues, but subject matter jurisdiction permits it.

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Discussion Section

• Research and citation labs will meet in this section for 50% of the time. 10/1, 10/8, 10/29 are labs.
• Writing more simply and being precise. Write so that you cannot be misunderstood (unless you choose to).
• "Please hold handle down while flushing" should be "when flushing." (?) Anyway, choose words with care.
• Writing more simply: omit surplus words. Use shorter sentences.
• Handout 3: horrible sentence.
• Working words and glue words. Get as many working words and as few glue words as possible ("for the reason that" = because ; "in relation to" = regarding/about ; "in the event that" = if, etc.). "He was aware of the fact that" = "he knew."
• Avoid nominalizations: they add glue words.
• Prefer active voice. There are times when passive is acceptable, but use it only when needed
• Use concrete familiar words, not lawyerisms. Avoid colloquialisms and slang. Avoid rhetorical questions.
• Punctuate carefully.
• Review chapter two in the plain english for lawyers book and edit the bad sentence.
• So. We will be taking the Raheem case. Our client is Raheem's father.
• Docket number: 08CVsomeserialnumber (08= 2008, CV= civil)
• Ingredients in the caption: Court, names of parties, docket number, attorney name (and state bar number), signed by an attorney admitted to practice. COMPLAINT.
• The contents will have facts and laws mentioned.
• Who:
  • Defendants: Officers, City of MKE, PD (if it's separate from the city)
  • Plaintiff: Lewis Jackson (in two capacities: on behalf of himself and on behalf of Raheem's estate)
  • Not sued: Salvatora Aiello, because he isn't related to the issue of the case or what we want to recover
• What: wrongful death (how does Lewis bring this suit? that'll take some research; we need to look at the cause of action for wrongful death-- who can sue, and what must be alleged), violation of 4A under 42 USC § 1983.
• Where: Cir ct. for Mke Cty would be an option, but we prefer the Fed Ct for Eastern district. Note that we should pay attention to who the judges are as well-- we based this only on culture of the court. Maybe where the jury pool comes from also, but that may be less of an issue for us. If we are bringing both causes of action, we can get into either court. There are written opinions at the trial level for federal courts. You could look at appellate opinions to see how the trial court has been treated.
• When: Statutes for wrongful death, 42 USC will have a statute of limitations as well. USCA is contains cases that reference the statute (annotated statutes are an unofficial report of the statute).
• Why: Can we get injunctive relief, given that the statutory limitation pertaining to judicial officers? Perhaps there's no injunctive relief for wrongful death. Was there an investigation? What protocols do they have for handling similar situations. We are going to get this kind of info from discovery. Maybe we'd like a declaratory judgment (technically a type of injunctive relief).
• How: Discovery. Theme: excessive unreasonable use of force by the defendants.
• We are defendants. We go with Samira.
• Wrongful death Wis. Stat. § 895.04. Note that it has a damage cap.
• Note that some questions we won't answer until after we draft the complaint.