Civil Procedure

Civil Procedure


Welcome to the course
in civil procedure. I’m John Drobak. I’d like to spend a few minutes
telling you a little bit about myself and about what
I’m going to cover over the next eight weeks
of the semester. I’ve been teaching
civil procedure at Washington University
for over 30 years. It’s a field that
I’ve spent much time with because I do research. I’ve written articles
and books in the area. And I’ve taught
other courses that build upon the basic
course in civil procedure. I’ve also enjoyed
teaching students who are not from
the United States. In a number of years,
I’ve taught in Prague. I taught in Utrecht
in the Netherlands, in Lisbon, in Corsica. And I really enjoyed
listening to other students talk about their procedure
compared with the United States procedure and getting their
perspectives on the ways we’re different. And if they like the way
we are, or they think, really, the United
States should really move toward some other
kind of procedural system. So I hope that we can talk
about things like this during the semester. And I’m looking forward to
hearing your views on this. Let me give you a brief
summary of five things that I want to
cover this semester. You have a syllabus. So you know what I’m going
to cover in each class. But I want to emphasize
five things that really, in part, run through the entire
syllabus, the material we’re going to study. The first is the United States
has an adversary system. It’s not inquisitorial like
a lot of civil law systems. That means the judge
plays a very passive role. The parties and
the lawyers really make all the
decisions in the case. For example, if
someone gets hurt, they fall on a banana
peel in a grocery store. There’s no requirement
that they sue. If someone breaks their
back or their leg, and they don’t want to sue, no
judge, no government official makes them sue. The parties and the
lawyers get to choose the legal strategies
they want to use. They get to decide
which witnesses, how to put their trial together. It’s something that is
always left to the parties. The other aspect
is the parties can settle anytime they want to. Even if that the state has
invested years and thousands of dollars into a litigation,
if the parties want to settle the case when it’s
on appeal to the United States Supreme Court, it’s
their own business. A few years ago there
was a controversial case involving reverse discrimination
where a school district in New Jersey had two teachers
of equal quality. And they laid off
the white teacher because they were looking for a
more diverse group of teachers in the school. So the white teacher sued. And at the time, the
law was unsettled. So it worked its way through
the court system all the way to the United States
Supreme Court. And an organization
that supported affirmative action paid
off the white teacher before the Supreme Court
could decide the case, so she would dismiss it. Because they feared that
the Supreme Court would rule in a way that
worked against this kind of affirmative action. That’s their business. There’s nothing
wrong with deciding to settle if you
want to do that. That’s part of the American way. The second aspect
is the influence of the Constitution in history
on modern litigation strategy. Our Constitution
was enacted in 1785. And the United
States Supreme Court views it as a legal document. So it’s given precise
meaning to very vague terms like due process of law. It interprets it like
a legal document. The Supreme Court views it as
the highest law of the land. So whatever is done in
any state or federal court has to meet the standards
the Supreme Court says the Constitution establishes. It’s a strange
system because it’s very hard to change
our Constitution. So we live with this document
that really guides all of us, even though it’s over,
geez, 200, 240 years old. The third aspect is the federal
nature of the United States. When we beat the British
in the Revolutionary War, we were 13 colonies. The 13 colonies became 13
separate sovereigns, each a descendant of the monarchy. Each one viewed itself
as a government. And those 13 sovereigns together
formed an umbrella government called the federal government. And so 13 became 14. And over time, as more
states were added, we now have 51 governments
in the United States. The 50 state governments and
the federal government, each one is a sovereign. Each one has aspects
of sovereignty. And that influences
the relationship between the federal government
and the state government, as well as the relationship
between federal courts and state courts. And you will see
that as we study procedure over the
next few weeks. The next aspect is juries. Nobody in the world
uses juries the way we do in civil litigation. Again, it goes back to
the historical effect of our constitution. The Seventh Amendment
to the Constitution requires the use of jury trials. The wording of the amendment
says the right to a jury trial is preserved as that common law. And the Supreme Court has taken
the word preserved literally. So we look back to 1785 to
see what the English did under their jury system
for the common law. That’s what we do
in America today. Now it’s a strange system
because even the British have given up on their jurors
in civil litigation decades ago. They use juries for criminal
cases and for dignity torts, like slander and libel. They don’t use juries
for anything else because most people
think that juries are not as good fact finders as judges. But in the United
States, because we have to use the jury
system, litigators have learned how to have a
special form of litigation where they’re trying to
teach laypeople about the law at the same time
talking to the judges. So really they’re
litigating on two levels. The last unique aspect
of the American system are class actions. Class actions have been
around for a long time. And they’re a very important
part of modern litigation in the United States
because the stakes are high. I mean there’s been
classes where there’s been over 50 million
members in the class. There’s been class actions where
tens and hundreds of billions of dollars have been awarded
to successful classes. And think about this. The lawyers get a
percentage of the fee. The ordinary tort lawyer
gets 30% to 50% of the fee. This is an impetus for lawyers
to bring class actions. So we’ve developed a system
where people fight over whether or not class actions
are appropriate given circumstances. And that’s what
I’m going to talk about when we come to the
class on class actions. A lot of other
countries are thinking about adopting our
class action system. And I think it’s useful to
know the really good aspects of the class action but
the danger the class action practice can have
for society, too. So that’s the main
themes of what I want to teach you over
the next eight weeks. And I hope that you
can see these running through the specific
material that I’ll teach you.

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