Escolar Documentos
Profissional Documentos
Cultura Documentos
PROCEDURE
Fifth Edition
LEXISNEXIS LAW SCHOOL ADVISORY
BOARD
Paul Caron
Charles Hartsock Professor of Law
University of Cincinnati College of Law
Olympia Duhart
Professor of Law and Director of Lawyering Skills & Values Program
Nova Southeastern University, Shepard Broad Law School
Samuel Estreicher
Dwight D. Opperman Professor of Law
Director, Center for Labor and Employment Law
NYU School of Law
Steven I. Friedland
Professor of Law and Senior Scholar
Elon University School of Law
Joan Heminway
College of Law Distinguished Professor of Law
University of Tennessee College of Law
Edward Imwinkelried
Edward L. Barrett, Jr. Professor of Law
UC Davis School of Law
Paul Marcus
Haynes Professor of Law
William and Mary Law School
John Sprankling
Distinguished Professor of Law
McGeorge School of Law
Melissa Weresh
Director of Legal Writing and Professor of Law
Drake University Law School
UNDERSTANDING CIVIL
PROCEDURE
FIFTH EDITION
Gene R. Shreve
Richard S. Melvin Professor of Law
Indiana University Maurer School of Law
Peter Raven-Hansen
Glen Earl Weston Research Professor of Law
George Washington University Law School
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(2013–Pub.797)
Acknowledgments
In preparing this edition, we benefitted considerably from our collaboration with Walter
Heiser, who has joined us as a coauthor on the California edition of this book. In
addition, Peter Raven-Hansen would like to thank George Washington University Law
students Kyle Jones, who researched, edited, and re-edited most of the book, Zlatomira
Simeonova, Evan Minsberg, and Lisa Fuller, who also helped by their research. Charles
Geyh would like to thank Indiana University Maurer School of Law students Chelsea
Anderson, Claire Costa, Anita Foss, Brian Lynch, and Tom Moore for their research
assistance, and Rita Eads for her administrative support. As always, we thank our spouses
for their patience and support. Finally, we thank our readers for selecting this book.
Please let us know of corrections or suggestions for improvement.
Washington, D.C.
Bloomington, IN
iii
Preface to First Edition
This text treats the entire subject of civil procedure. It is primarily intended as a reference
for law school civil procedure students. However, its treatment of recent developments in
areas like Federal Rules of Civil Procedure 11, 16 and 26, personal jurisdiction and res
judicata may make it useful to some practitioners as well.
If the law of contracts, torts or property reflects the substantive values of our society, civil
procedure is the process for making those values real. The law of civil procedure governs
the manner in which cases enter, transit, and leave the judicial process. It establishes the
authority of courts to hear cases, opportunities for litigants to create and use a record of
decision, and the force and effect of judgments.
We believe that the key to understanding the principles of civil procedure is knowing
why: why they were created and why they are invoked. To these ends we have used a
variety of means. History is the key to personal jurisdiction and the Erie doctrine, and we
have explained them accordingly by tracing their historical evolution. Pragmatic concerns
chiefly shape the civil procedure of pretrial discovery and motion practice, as well as trial
practice, and we start discussion of these subjects by assessing why a lawyer is interested
in them.
Federal Rule 11, discovery controls under Federal Rules 26(b)(1), 26(f), and 26(g), and
expanded pretrial management under Federal Rule 16, are subjects so new that neither
history nor pragmatic considerations are sufficient to anticipate their development. Using
theory as well as both reported and unreported opinions available through early 1988, we
have compensated by giving more prominence to these subjects than they presently enjoy
in the typical civil procedure curriculum. This reflects our conviction that the subjects
will grow in importance over the next few years. Finally, throughout the book we identify
the latest sources which will enable readers with specialized needs to supplement the
information we provide.
We have followed the practice of almost all civil procedure courses in using the Federal
Rules of Civil Procedure as our model. However, we have also referred to different state
rules and doctrines where appropriate, striving to use a representative cross-section of
state models. We have also referred frequently to major civil procedure treatises, using a
short form for citations explained in § 5.
Bloomington, Indiana
Washington, D.C.
May, 1988
v
TABLE OF CONTENTS
Preface to Fifth Edition
Preface to First Edition
Chapter 1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
xii
TABLE OF CONTENTS
Chapter 9 COMPLEX PLEADING AND PRACTICE . . . . . . . . . . . 271
xviii
TABLE OF CONTENTS
Chapter 14 REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 511
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
xxi
Chapter 1
INTRODUCTION
1
When the losing party can appeal a trial judge’s procedural order and does so, the appellate court
must decide whether the order under review should be upheld. Whatever it decides, the appellate court
1
2 INTRODUCTION CH. 1
point or because redecision does not seem to justify expenditure of scarce appellate
resources. Where and how the line should be drawn between matters freely
reviewable and matters committed to the trial court’s discretion (hence, largely
unreviewable) is a recurring question in the civil procedure course.
A second difference between litigation and most games is that games are usually
not of central importance to (at least amateur) participants or to society. In
contrast, the plaintiff may be forced to play the litigation game in order to avert or
recover from a crushing setback in life. To deny claimants opportunities to become
effective players in the litigation game might make meaningless the rights secured
by substantive law (e.g., torts, contracts, civil rights).
Readers of Dickens’ Bleak House will recall how the redundant and prolonged
Chancery procedure consumed the merits of the case. And, as Kafka’s The Trial
suggests, too little procedure can be just as bad. At its worst, procedure displaces
or blocks substance. This can happen either when the expense and delay of too
much procedure makes it impossible for a player to stay in the game long enough
to reach the merits, or when potential players are shut out of the game because
there is too little procedure. We must also be sensitive to possible differences
between rules in theory and in application. As Anatole France observed, “the law in
its majestic equality forbids the rich as well as the poor to sleep under bridges, to
beg in the streets and to steal bread.”
Ultimately, then, the game analogy must be used cautiously because it risks
trivializing both the costs and the stakes of litigation. Unlike a game, civil litigation
does not exist for its own sake. Civil Procedure works best when it validates
substantive law (the merits) in the most expeditious, accessible, and unobtrusive
way possible.
acts by issuing an order of its own, e.g., to affirm, to reverse, or to vacate and remand for further
proceedings. It often explains its order in an accompanying opinion. Most of the edited opinions civil
procedure students read are appellate rather than trial court opinions.
2
Hanna v. Plumer, 380 U.S. 460, 475 (1965) (Harlan, J., concurring).
3
For a detailed and illuminating discussion of distinctions between the two, see Walter Wheeler Cook,
“Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J. 333 (1933).
§ 1.01 WHAT IS CIVIL PROCEDURE? 3
4
See, e.g., John H. Langbein, The German Advantage in Civil Procedure, 52 U. CHI. L. REV. 823
(1985).
5
Jonathan T. Molot, How Changes in the Legal Profession Reflect Changes in Civil Procedure, 84 VA.
L. REV. 955, 958 (1998).
6
Leonard L. Baird, A Survey of the Relevance of Legal Training to Law School Graduates, 29 J.
LEGAL EDUC. 264, 273 (1978) (explaining that knowledge of common law, constitutional law, ethics, and
regulations were all ranked lower by practitioners). More recent studies suggest that practitioners still
consider knowledge of substantive law and procedural rules to be vital traits for young lawyers, see
AMERICAN BAR ASSOCIATION TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP, LEGAL
EDUCATION AND PROFESSIONAL DEVELOPMENT AN EDUCATIONAL CONTINUUM (Robert MacCrate ed., 1992)
(identifying ten skills that the “well-trained generalist” should have; prominent among these skills were
4 INTRODUCTION CH. 1
Finally, the purpose of civil procedure is, as the Federal Rules of Civil
Procedure state, “to secure the just, speedy, and inexpensive determination of
every action and proceeding.”7 Presumably, decisions are more likely to be just
when they reach the merits (we say, “on the merits”). But the adversarial character
of civil dispute resolution in the United States, the number of lawyers, and perhaps
a national tendency to look too readily to the courts to solve disputes that other
societies settle politically, administratively or privately,8 have made the goals of
“speedy and inexpensive” determinations increasingly difficult to attain.9 As a
result, there is constant pressure for more active judicial management of litigation
and for judicial intervention to dispose of litigation without trial, if possible. Thus,
the 1993 amendment to Rule 1 requires the rules not just to be “construed” (the
original term), but also “administered” — “to secure just, speedy, and inexpensive
determination of every action and proceeding.” No one foresees the replacement of
our adversarial model by the inquisitorial model of dispute resolution (in which the
judge, not the parties, drives the litigation process), yet our model is undergoing
significant change in response to widespread criticisms of the cost and efficiency of
civil litigation.
“legal analysis and reasoning,” and “litigation and alternative dispute-resolution procedures”). There is
some evidence, however, that recognition of the importance of procedural and statutory knowledge has
waned over the past few decades, see Bryant G. Garth & Joanne Martin, Law Schools and the
Construction of Competence, 43 J. LEGAL EDUC. 469 (1993) (noting that, fifteen years after the study cited
in Baird’s article, surveyed hiring partners believed that knowledge of substantive and procedural law
ranked well behind more esoteric eras — like “ability to obtain and keep clients,” and “instilling others’
confidence in you” — when it came to hiring decisions and partnership selections). One wonders whether
those who believe that substantive and procedural acumen is of lesser importance feel the same way
when selecting an associate to draft a key appellate brief!
7
See, e.g., FED. R. CIV. P. 1. Hereinafter we will cite to a Federal Rule of Civil Procedure as “Rule.”
8
See PATRICK M. GARRY, A NATION OF ADVERSARIES: HOW THE LITIGATION EXPLOSION IS RESHAPING AMERICA
(1997); WALTER K. OLSON, THE LITIGATION EXPLOSION: WHAT HAPPENED WHEN AMERICA UNLEASHED THE
LAWSUIT (1991); JETHRO KOLLER LIEBERMAN, THE LITIGIOUS SOCIETY (1983); see also Nicola Faith Sharpe,
Corporate Cooperation Through Cost-Sharing, 16 MICH. TELECOMM. & TECH. L. REV. 109, 116 (2009) (“The
1960s and early 1970s saw technological changes that led to an increase in discovery volume, burden, and
costs, and has since been characterized by some as a litigation explosion. The widespread use of
computers and digital communication has spawned a similar escalation.”). We say “perhaps,” because
scholars have raised serious doubts whether the data support claims of a “litigation explosion,” especially
when one considers the number of lawsuits in proportion to the world’s largest economy. See, e.g., Arthur
R. Miller, The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and
Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. REV. 982
(2003); Marc S. Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); see also
Richard M. Calkins, Mediation: A Revolutionary Process That Is Replacing the American Judicial
System, 13 CARDOZO J. CONFLICT RESOL. 1 (2011).
9
See, e.g., Arthur R. Miller, The Adversary System: Dinosaur or Phoenix, 69 MINN. L. REV. 1 (1984);
David M. Trubek et al., The Costs of Ordinary Litigation, 31 U.C.L.A. L. REV. 72 (1983); Rand Inst., The
Costs of Asbestos Litigation (1983), excerpted in LEGAL TIMES OF WASHINGTON, Aug. 8, 1983, at 26, Table
6.2 (reporting that of every dollar expended per claim, 37 cents were attributable to defendant’s litigation
expenses, 26 cents attributable to plaintiff’s litigation expenses, and 37 cents attributable to net
compensation to plaintiffs). Litigation delays vary tremendously between courts. In federal trial courts,
the median time between commencement of civil litigation and disposition at trial was 23.4 months, with
many of the dispositions at trial taking much longer. 2011 ADMIN. OFFICE U.S. COURTS ANNUAL REPORT OF
THE DIR., Table C-59. See also Bruce Moyer, Congress and the Courts: The Outlook for 2011, 58 FED. LAW.
8 (2011) (“[S]ignificant budget cuts for the federal courts could result in job furloughs and reductions in
court personnel. That could slow down court operations and create litigation delays.”).
§ 1.01 WHAT IS CIVIL PROCEDURE? 5
10
CHARLES M. HEPBURN, THE HISTORICAL DEVELOPMENT OF CODE PLEADING IN AMERICA AND ENGLAND WITH
SPECIAL REFERENCE TO THE CODES OF NEW YORK, MISSOURI, CALIFORNIA, KENTUCKY, IOWA, MINNESOTA, INDIANA,
OHIO, OREGON, WASHINGTON, NEBRASKA, WISCONSIN, KANSAS, NEVADA, NORTH DAKOTA, SOUTH DAKOTA, IDAHO,
MONTANA, ARIZONA, NORTH CAROLINA, SOUTH CAROLINA, ARKANSAS, WYOMING, UTAH, COLORADO, CONNECTICUT,
AND OKLAHOMA __ (1897).
11
Jones Motor Co. v. Holtkamp, Liese, Beckemeier & Childress P.C., 197 F.3d 1190 (7th Cir. 1999)
(asserting that failure to perfect jury demand may be such a procedure, but affirming judgment for
malpractice defendant because plaintiffs had not proven resulting damages to a reasonable certainty).
12
See §§ 13.09 & 13.10 (scope and intensity of review), infra.
13
FLEMING JAMES JR. ET AL., CIVIL PROCEDURE § 1.1 (4th ed. 1992) (quotation marks supplied)
(hereinafter JAMES, HAZARD, & LEUBSDORF). See Robert M. Cover, For James Wm. Moore: Some
Reflections on a Reading of the Rules, 84 YALE L.J. 718 (1975).
14
Suits which may be brought by representative parties on behalf of a defined class of members who
are not themselves participants in the litigation but may be bound by its outcome. See § 9.09 (class
actions), infra.
15
See Hal S. Scott, Comment, The Impact of Class Actions on Rule 10b-5, 38 U. CHI. L. REV. 337, 338
(1971) (arguing that class actions permit some class members to recover who would fail to satisfy reliance
and materiality requirements in individual actions for securities fraud).
16
See Kenneth E. Scott, Two Models of the Civil Process, 27 STAN. L. REV. 937, 944 (1975) (noting that
the expense of such notice dooms most consumer actions because, if the cost precludes maintenance of
a class action, the expense of suing individually exceeds the benefits that they could confer on individual
plaintiffs). That is, it just isn’t worth it unless the class action rules permit the individual plaintiffs to join
together as a class.
17
Morris R. Cohen, The Process of Judicial Legislation, in LAW AND THE SOCIAL ORDER: ESSAYS IN
LEGAL PHILOSOPHY 112 (2001).
6 INTRODUCTION CH. 1
Another common misperception is that civil procedure is nothing more than the
unimaginative and routine application of black-letter law to dry procedural issues.
This may be a law student’s initial reaction to the positive law materials from which
civil procedure is primarily taught. Yet positive law is more dynamic than the black
letter of a rule or statute might indicate. Moreover, important parts of civil
procedure, including personal jurisdiction (court’s power to bind particular
defendants) and res judicata (the effect of prior judgments on subsequent
litigation), are based primarily on judicial doctrine, rather than written rules.
Furthermore, such written rules or statutes governing procedural questions are
not self-applying. Problems often elude solution by plain-language tests or
application of simple canons of statutory construction. Statutes over time acquire
their own judicial gloss. The legislative product may be inarticulate, forcing courts
to finish the lawmaking process. Or the legislature may deliberately create a rule
that can never be completed in the abstract. Rules of the latter kind place courts at
procedural crossroads, supplying general criteria for decision and leaving the
result to courts’ appreciation of the facts in particular cases.18
In addition, many, if not most, procedural questions are susceptible to more than
one answer. Civil procedure, hence effective litigation, consists less of finding black-
letter answers than of making choices among tactical options. These choices turn
not just on the rules and procedural posture of litigation, but also on the relative
strengths and attitudes of the parties, the relationships between lawyers and
judge, and all the other subtle factors that make lawyering an art as well as a
profession.
A third misperception is that civil procedure is trial practice.19 This may cause
some law students who cannot picture themselves as trial lawyers to approach
their civil procedure course with less enthusiasm. But even a brief glance at
litigation statistics refutes this perception. For example, of all the federal civil
actions terminated in the year ending Sept. 30, 2000, 72% ended before the pretrial
conference that often precedes trial in federal court20 (one in four of these ended
without court action of any kind), 8% ended during or after pretrial, and only 1.4%
made it to trial.21 Just under one third of these were tried to a judge rather than a
jury,22 calling upon far different lawyering skills than far more rare jury trial
practice. State civil disposition statistics23 send the same message: civil procedure
is not about trial. Litigation in the United States is predominantly pretrial
18
See, e.g., § 9.05 (discussing Rules 19 and 20 dealing with compulsory and permissive joinder), infra.
19
For treatment of trial practice (jury selection, opening statements, presentation of evidence,
closing argument, jury deliberation, and preservation of points for appeal), see MARILYN J. BERGER, JOHN
B. MITCHELL & RONALD H. CLARK, TRIAL ADVOCACY: PLANNING ANALYSIS & STRATEGY (3d ed. 2011); D. SHANE
READ, WINNING AT TRIAL (2007).
20
See § 12.03 (pretrial conference), infra.
21
2005 ADMIN. OFFICE U.S. COURTS ANNUAL REPORT OF THE DIR., note 9, supra, Table C-4A.
22
2005 ADMIN. OFFICE U.S. COURTS ANNUAL REPORT OF THE DIR., note 9, supra, Table C-4A.
23
See LYNN LANGTON & THOMAS H. COHEN, BUREAU OF JUSTICE STATISTICS, CIVIL BENCH AND JURY TRIALS
IN STATE COURTS, 2005 (2008), available at http://www.bjs.gov/content/pub/pdf/cbjtsc05.pdf (indicating that
3% of all tort, contract, and real property cases in state courts were disposed of through a jury or bench
trial in 2005).
§ 1.02 SOURCES OF CIVIL PROCEDURE 7
24
U.S. CONST. art. III. See Ch. 5 (subject matter jurisdiction), infra.
25
U.S. CONST. art. IV. See §§ 15.10–15.11 (full faith and credit and inter-system preclusion), infra.
26
U.S. CONST. amend. VII. See § 12.07[1] (right to a jury), infra. Most state constitutions have
analogous procedural provisions governing state courts.
27
See Ch. 3 (personal jurisdiction), infra.
28
See Ch. 4 (notice and opportunity to be heard) & § 9.09[4] (due process requirements in class
actions), infra.
29
See John Leubsdorf, Constitutional Civil Procedure, 63 TEX. L. REV. 579 (1984).
30
See §§ 5.01[2] (citing federal statutes illustratively), 13.02–13.04 (federal appeals), infra.
31
See Ch. 6 (venue), infra.
32
See § 3.07[1] (long-arm statutes), infra.
33
Approximately thirty-five states now mirror the federal rules in their state procedural rules. See
John B. Oakley, A Fresh Look at the Federal Rules in State Courts, 3 NEV. L.J. 354 (2003). Even states
that have clung onto their own, more unique procedural rules (like California and New York) have
adopted the federal rules’ cornerstones: relaxed pleading; broad discovery; a willingness to turn to
summary judgment; and forgiving joinder rules. See id.
34
Oakley, note 33, supra.
8 INTRODUCTION CH. 1
Procedure,35 and almost two-thirds of the states based their procedures substan-
tially on the federal model (although several of the most populated states —
including New York and California — substantially diverged from it).36 As a result,
almost all first year civil procedure courses and casebooks focus primarily on the
federal rules, as we will here. At the same time, you should remember that the rules
of the state in which you eventually practice may well differ, and that you cannot
assume that even a state rule that is apparently modeled on a federal rule is the
same as the federal “source” rule, or that it has been interpreted the same way as
a matter of state law.
Some understanding of the federal rulemaking process37 is essential to under-
standing the effect of the Federal Rules of Civil Procedure in federal courts. The
Rules Enabling Act delegates lawmaking authority to the Supreme Court to make
rules governing “general rules of practice and procedure” for cases in the federal
courts.38 The Judicial Conference of the United States, comprised of the Chief
Justice of the Supreme Court and designated judges from other federal courts,
oversees the rulemaking process. The Advisory Committee on Civil Rules to the
Judicial Conference’s Standing Committee on Rules of Practice and Procedure is
charged with the actual work of drafting and recommending rules of civil procedure.
The Advisory Committee is comprised of judges, practitioners and law professors.
The Chief Justice appoints a Reporter who monitors developments in the field and
aids the Advisory Committee.
Federal procedural rulemaking typically begins when the Advisory Committee
notes a procedural need or problem. If the Committee so directs, the Reporter
prepares a preliminary draft of responsive rule changes with “committee notes”
explaining their purpose. The Committee meets and revises these materials and
35
Oakley, note 33, supra (listing Alabama, Alaska, Arizona, Colorado, District of Columbia, Hawaii,
Indiana, Kentucky, Maine, Massachusetts, Minnesota, Montana, New Mexico, North Dakota, Ohio,
Rhode Island, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, and Wyoming). This
statement tends to understate the influence of the federal rules, because four of the states with statutory
procedural codes have codified versions of the federal rules (Georgia, Kansas, North Carolina, and
Oklahoma), and three other states have rules that “show strong affinity to the content and organization
of the Federal Rules . . . .” (Idaho, Michigan, and Nevada). See Kenneth W. Graham Jr., State
Adaptation of the Federal Rules: The Pros and Cons, 43 OKLA. L. REV. 293 (1990). Even states that
replicated the federal rules have not necessarily kept pace with federal rule amendments, however. See
Stephen N. Subrin, Federal Rules, Local Rules, and States Rules: Uniformity, Divergence and
Emerging Procedural Patterns, 137 U. PA. L. REV. 1999, 2037 (1989).
36
Oakley, note 33, supra; see also John B. Oakley, A Fresh Look at the Federal Rules in State Courts,
3 NEV. L.J. 354 (2003).
37
See generally Thomas E. Baker, An Introduction to Federal Court Rulemaking Procedure, 22 TEX.
TECH. L. REV. 323 (1991); WINIFRED R. BROWN, FEDERAL RULEMAKING: PROBLEMS AND POSSIBILITIES (Federal
Judicial Center 1981); Benjamin Kaplan, Amendments of the Federal Rules of Civil Procedure 1961–1963
(I), 77 HARV. L. REV. 601, 601–02 (1964); Laurens Walker, A Comprehensive Reform for Federal Civil
Rulemaking, 61 GEO. WASH. L. REV. 455 (1993).
38
28 U.S.C. §§ 2071–2074. See generally Stephen B. Burbank, The Rules Enabling Act of 1934, 130
U. PA. L. REV. 1015 (1982). The Act expressly mandates that such rules “shall not abridge, enlarge or
modify any substantive right,” thus reserving substantive lawmaking to the Congress and to the state
legislatures within their proper spheres. See generally §§ 7.01–7.04 (the laws applied in federal courts
and the applicability of federal procedural rules), infra. See also Paul D. Carrington, “Substance” and
“Procedure” in the Rules Enabling Act, 1989 DUKE L.J. 281 (1989).
§ 1.02 SOURCES OF CIVIL PROCEDURE 9
then reports them to the Standing Committee. If the Standing Committee approves
the draft for publication, it is published in the Federal Register and the federal
reporters39 for public comment. In addition, the Advisory Committee usually holds
public hearings on the draft in diverse locations. After reviewing public comments,
the Committee may make revisions and then submit the proposed rule changes and
final comments40 to the Standing Committee of the Judicial Conference. The latter
reviews and ultimately forwards the proposal, revised if necessary, to the members
of the Judicial Conference.
If the Conference approves the proposal, it sends the rule changes to the
Supreme Court. In theory, the Supreme Court conducts a substantive review of the
change. In fact, the Justices have differed about their true role. Justice Douglas, for
example, described it as “merely perfunctory” and the Court as “a mere conduit”
for transmittal of the rules to Congress.41 Individual justices may make statements
concerning the rule changes. The Court then transmits the changes to Congress no
later than May 1 of the year in which they are to become effective. The change
becomes effective no earlier than December 1 of that year, unless Congress by
statute modifies or rejects the rule.42
However, not all written rules governing federal practice are promulgated in this
fashion. Rule 83 authorizes a majority of the judges of each district court to
promulgate local rules “consistent” with the formal federal rules of civil procedure.
Many district courts have exercised this authority to issue housekeeping rules
governing the length of briefs and the availability of oral hearings, attorney
admissions, procedures for submitting requests for attorneys’ fees, and other
matters.43 The result has been a proliferation of local rules, some of them
39
Selected opinions of federal courts are published in the Federal Supplement (district courts),
Federal Reporter (courts of appeals), and United States Reporter (Supreme Court).
40
When rule changes are adopted, the advisory committee’s notes become an important source of
legislative history for construing the changes. They are published in the Federal Rules Decisions, the
principal civil procedure treatises, and in many rulebooks.
41
See Statement of Douglas, 409 U.S. 1132 (1972) (Douglas, J., dissenting). More recently, Justice
White has said that the Court’s role “is to transmit the Judicial Conference’s recommendations without
change and without careful study, as long as there is no suggestion that the committee system has not
operated with integrity.” Statement of J. White, 113 S. Ct. CCC, CCCIV (1993).
42
Except for rules affecting an evidentiary privilege, Section 2074 contemplates (but does not
require) a passive role for Congress: “[i]nertia means approval.” David D. Siegel, 28 U.S.C.A. § 2074
commentary (1988). Congress usually remains silent, but has shown a greater tendency to become active
in recent years. Cf. John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693, 693–94 (1974)
(describing congressional resistance to the Court’s proposed federal rules of evidence), and § 4.03[1]
(describing congressional substitution of its own enactment for the Court’s proposed amendment to Rule
4), infra. Congress’ constitutional authority to change the rules is not undisputed. Compare Linda S.
Mullinex, Judicial Power and the Rules Enabling Act, 46 MERCER L. REV. 733 (1995) (questioning such
authority to supercede procedural rulemaking by the judiciary), with Martin H. Redish, Federal Judicial
Independence: Constitutional and Political Perspectives, 46 MERCER L. REV. 697 (1995) (supporting such
authority on majoritarian principles).
43
See CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3154 (giving
examples). The scope of local rulemaking authority is a matter of continuing debate. See, e.g., Samuel P.
Jordan, Local Rules and the Limits of Trans-Territorial Procedure, 52 WM. & MARY L. REV. 415 (2010);
Steven Flanders, Local Rules in Federal District Courts: Usurpation, Legislation, or Information?, 14
LOY. L.A. L. REV. 213 (1981); A. Leo Levin, Local Rules as Experiments: A Study in the Division of
10 INTRODUCTION CH. 1
Power, 139 U. PA. L. REV. 1567 (1991). In 1988, Congress acted to subject such rulemaking to closer
scrutiny. See 28 U.S.C. § 2071; David D. Siegel, 28 U.S.C.A. § 2071 commentary (1988).
44
See Stephen N. Subrin, Federal Rules, Local Rules, and State Rules: Uniformity, Divergence, and
Emerging Procedural Patterns, 137 U. PA. L. REV. 1999 (1989).
45
Charles Alan Wright, Forward: The Malaise of Federal Rulemaking, 14 REV. LITIG. 1, 11 (1994).
46
See, e.g., William W. Schwarzer (J., N.D. Cal.), Guidelines for Discovery, Motion Practice and
Trial, 117 F.R.D. 273 (1987). Judge Schwarzer’s Guidelines admonish counsel to observe not only the
Federal Rules of Civil Procedure and the District Court’s Local Rules, but also “the rules and practices
of the particular judge to whom the case is assigned.” The latter are available “[b]y obtaining from the
judge’s courtroom deputy copies of the standing orders used by that judge; and [b]y inquiring of the
deputy (not the law clerks) how the judge wants things done.” Schwarzer, at 273.
47
David D. Siegel, 28 U.S.C.A. § 2077 commentary (1988).
48
See Rules 15(a) (stipulation in lieu of court permission to amend pleadings), 26(f) (changes in
discovery limitations), and Rule 29 (stipulation of discovery procedure).
49
See, e.g., National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311 (1964) (enforcing contract that
designated agent to receive service).
50
MODEL RULES OF PROF’L CONDUCT (2011).
51
See ABA CENTER FOR PROFESSIONAL CONDUCT, STATUS OF STATE REVIEW OF PROFESSIONAL CONDUCT RULES
(chart), available at http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/
ethics_2000_status_chart.authcheckdam.pdf (current as of September 14, 2011).
52
See, e.g., MODEL RULES 3.1–3.6, note 50, supra.
53
AMERICAN BAR ASS’N, SPECIAL COMMITTEE ON EVALUATION AND DISCIPLINARY ENFORCEMENT, PROBLEMS AND
§ 1.03 BRIEFING A CIVIL PROCEDURE CASE 11
Instead, the crucial facts for us are procedural facts: what happened to the case
after it was filed. The chronology of procedural steps taken by the litigants and the
court is often important. For example, the pattern might be commencement of the
litigation by the filing of a complaint, defendant’s filing of a motion to dismiss the
complaint for some reason, argument on the motion leading to its denial, fact-
finding by the parties, trial, judgment for the plaintiff, and appeal by defendant
(raising, among others, the same issue presented previously by motion). Retracing
procedural steps is essential to understanding who’s who, what has happened in the
case, and how ripe procedural rulings are for review. It is also important to an
appreciation of the tactical aspects of litigation.55 It facilitates reconstruction of the
alternatives available to the parties as the litigation progresses.
Thus, while an elaborate general fact description may be unnecessary in briefing
most civil procedure cases, students should include a full statement of facts setting
the procedural posture of the case. This statement should ordinarily indicate who is
suing whom, facts which may be easier to diagram in the margin of the brief or the
casebook itself. The student might use arrows to represent claims (and sometimes
defenses) instead of describing the process narratively. Here is an illustration:
(Diagram shows that (1) Peters sued Davidson and Daniels for negligence,
whereupon (2) Davidson counterclaimed against Peters and (3) cross-claimed
against Daniels for negligence, and (4) Daniels impleaded Stranger on a
theory of contribution.)
The chronology of procedural facts can be suggested by numbering the facts in
the brief (as illustrated above) or in the case excerpt itself.
Next, it is useful to identify the statutes or rules involved in the case. Some study
aids omit this step in briefing because they are geared primarily to briefing cases
applying common law, not positive law (statutes or codified rules of procedure).56
55
See § 1.01[1], supra.
56
Since procedural decisions often turn on rules of positive law, a routine search for this material is
a good briefing step. Never rely on a paraphrase of the positive law; good lawyers always read the
original on the theory that you cannot ascertain the “plain meaning” of words without reading them.
Here there simply is no substitute for the actual language of the statute or rule.
Nor is it enough to consider this kind of material in the abstract or in bulk at sporadic intervals during
§ 1.03 BRIEFING A CIVIL PROCEDURE CASE 13
For example, when you encounter positive federal law, consider the following
approach. Read the cited statute or rule carefully, going to your rulebook if the text
is not reproduced in the case itself. Is it clear from a reading of the provision how
Congress or the rulemakers intended to apply it to the case at hand? If so, has the
court’s decision given it that application? If it is not clear from a reading of the
provision how Congress or the rulemakers intended it to apply to the case at hand,
has the court resolved the provision’s ambiguity in a satisfactory way? Often, to
answer these questions, it is necessary not just to read the provision in question, but
to read around it to grasp the context in which it appears and to compare it with like
provisions (sometimes called construing a statute or rule “in pari materia” (the
principle that when a statutory provision or rule is ambiguous, its meaning can be
ascertained by comparing it with others on the same or similar subjects)).
Third, the brief should frame the issues presented by the case. Many opinions do
this expressly, but when the opinion is unclear, framing the issue is often the crucial
step towards understanding the court’s decision and its reasoning. If you are just
annotating a casebook, and can identify the issue in the opinion, marking it with a
“Q” may do the job, but sometimes you must frame the issue yourself.
Fourth, the brief should describe the court’s decision on the issue at two levels.
The court will both supply an answer to the issue put by the case and make a formal
disposition of the case, as noted often in the final paragraph. For example, when the
issue is whether the plaintiff’s complaint has stated a claim upon which relief can be
granted, the court may decide that it does not and then grant the motion to dismiss
and enter an order of dismissal. But this latter disposition — an order of dismissal
— need not go hand-in-hand with the decision of the issue. The court might instead
grant the motion to dismiss with leave (permission) to plaintiff to amend his
complaint.
Fifth, the brief should describe and critique the reasoning articulated for the
decision. In describing the reasoning, the student should take full advantage of
dissenting and concurring opinions, sometimes expressly written to limit the
applicability of the court’s reasoning. Presumptuous as it might seem at first, you
must also evaluate the court’s reasoning. This may take some effort, since students
often arrive at law school believing that the laws they will study exist as part of a
static natural order — like laws of physics. Unfortunately, this attitude permits no
more than a superficial grasp of the law in civil procedure or other courses. It makes
the student easy prey for the rhetoric in many judicial opinions that the result
reached by the court is obvious. On the contrary, many cases — particularly those
selected for casebook treatment — pose close and difficult questions. Great jurists
may produce illuminating opinions, but they cannot make hard cases easy. What one
often finds is “not a matter of right against wrong, but of right against right.”57 And,
of course, judges often get it wrong. In fact, your casebooks sometimes include
wrong or doubtful decisions because they provoke useful class discussion.
the semester. Students can best learn and understand statutes and rules of procedure in the context of
particular case applications. It goes without saying that cases must be read with the rulebook close at
hand.
57
Maurice Rosenberg, Devising Procedures That Are Civil to Promote Justice That Is Civilized, 69
MICH. L. REV. 797, 797 (1971).
14 INTRODUCTION CH. 1
This critical side of analysis and discussion is a good deal of what makes the
course (and the professor) tick. Civil procedure professors strive to illustrate and
teach the proposition that civil procedure involves hard choices. In turn, answers to
examination questions must reflect judgment seasoned by an appreciation of both
sides of the issue.58 To respond, students cannot afford a passive approach to
assigned materials.
The critique of the court’s reasoning will be the most ambitious portion of your
brief, the part most likely to require revision during and after civil procedure class.
Don’t worry. As noted earlier, unrevised case briefs are ultimately unreliable,
anyway. The purpose of briefing is to enable you to get the most out of class and to
stimulate (and ultimately reward) your critical thought. A marked up brief is
evidence that the purpose was accomplished.
58
Contrary to what beginning students might assume, students rarely get the bottom line wrong, at
least in essay examinations. The difference between an “A” and a “C” examination more often lies in the
imagination and agility demonstrated in applying course rules and concepts in a new setting, than in
differences in bottom line conclusions. This demonstration is possible only with an approach to civil
procedure that is both descriptive and critical.
§ 1.05 RESEARCH AND DRAFTING IN CIVIL PROCEDURE 15
in the rule itself, but in the judicial gloss on the rule. You will therefore often need
to reorganize a rule and add to it from the cases in order to operationalize it.
Finally, even if you choose not to outline or decide to outline in a different fashion,
you should realize that you unavoidably do it anyway when you apply the rules to
solve a civil litigation problem. The written attack outline is simply a map of a logical
thought process or decision tree that informs legal analysis of a problem.
Federal Rules of Civil Procedure, for example, these variants include at least
“FRCP,” “F. R. C. P.,” “Fed. R. Civ. P.,” “Rule,” and “R.” with the relevant number,
and, ideally, some generic phrase to help exclude like-numbered federal rules of
appellate or criminal procedure from the search.
For drafting problems involving the Federal Rules of Civil Procedure, students
should consult the official appendix of forms immediately following the rules. These
forms have been declared sufficient in federal practice by Rule 84. Students may
also wish to examine unofficial form books. These may offer guidance in both state
and federal practice.59 They are collections of prior pleadings, motions or discovery
requests. Most have passed muster at some time in a relevant court and may
therefore serve as a form for current papers of the same kind. The advent of the
Internet age has also ushered in a veritable cottage industry that offers download-
able templates of an array of legal pleadings. Depending on the type of pleading
sought, one might find what one needs free of charge,60 or for a (handsome) price.61
For several reasons, such form books must be used with extreme caution and a
heavy dose of common sense. First, unlike those in the official appendix to the
federal rules, most published forms do not carry the imprimatur of any court
system. All that stands behind many items memorialized as forms is that they
worked once in a case. Close perusal of the fine print in the form books that give
citations may reveal that the most recent approval of a particular form came in the
nineteenth century. Arcane and dated wording in forms provides another danger
signal. Second, because forms were originally created to meet the facts and
demands of a different case, substantial adaptation is often necessary to make
forms usable. Finally, a form may not have been selected for its brilliance, but for
its (one-time) sufficiency. It may represent no more than the lowest common
denominator. Still, form books (and, particularly in large law firms today, internally-
generated forms and prior papers) are often a helpful starting point for procedural
drafting.
59
See, e.g., AMERICAN JURISPRUDENCE PLEADING AND PRACTICE FORMS ANNOTATED (Lawyers Co-op.); LOUIS
R. FRUMER & IRWIN HALL ET AL., BENDER’S FEDERAL PRACTICE FORMS (Matthew Bender); BENDER’S FORMS
OF DISCOVERY (Matthew Bender); FEDERAL PROCEDURAL FORMS LAWYERS EDITION (Lawyers Co-op); NICHOLS
CYCLOPEDIA OF FEDERAL PROCEDURE FORMS (Callaghan); WEST’S FEDERAL FORMS (West).
60
See Joan Indiana Rigdon, Pro Bono Goes Online, D.C. BAR (May 2002), available at http://
www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/may_2002/probono.cfm (offering
select free pleading templates online for pro bono litigators).
61
See California Pleading Templates Package, CNET, available at http://download.cnet.com/
California-Pleading-Templates-Package/3000-2073_4-10421944.html (last visited June 12, 2012) (Offering
“a pleading software and template package for major California and Federal District & Appellate courts”
for the low, low price of $349!).
§ 1.06 BIBLIOGRAPHY AND SHORT FORM CITATIONS 17
these sources because the page numbers vary with succeeding editions.
I. Hornbooks
RICHARD D. FREER, INTRODUCTION TO CIVIL PROCEDURE (3d ed. 2012)
JACK H. FRIEDENTHAL, ARTHUR R. MILLER, JOHN E. SEXTON & HELEN HERSHKOFF,
CIVIL PROCEDURE (10th ed. 2009).
FLEMING JAMES, JR., GEOFFREY C. HAZARD, JR. & JOHN LEUBSDORF, CIVIL PROCE-
DURE (5th ed. 2001).
LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE (4th ed. 2009).
CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS (6th ed. 2002).
II. Treatises
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE (4th ed. 2008,
updated online 2012) (WRIGHT & MILLER). In rare cases where quoted material is
taken from a prior edition, we have left a full citation.
JAMES W. MOORE, MOORE’S FEDERAL PRACTICE (3d ed. 1997, updated online 2012)
(MOORE; volume number omitted where section number is keyed to a Federal Rule
of Civil Procedure). In rare cases where quoted material is taken from a prior
edition of MOORE, we have left a full citation.
Chapter 2
SELECTING A COURT — AN INTRODUCTION
1
The District of Columbia was given its own judicial system by District of Columbia Court Reform
and Criminal Procedure Act of 1970, Pub. L. 91-358, 84 Stat. 473 (codified in scattered sections of 28
U.S.C.).
2
Cases may also originate in administrative agencies or in certain specialized courts created by
Congress. E.g., 28 U.S.C. §§ 171–179 (Court of Federal Claims); 28 U.S.C. §§ 1581–1585 (Court of
International Trade).
3
See § 5.01 (subject matter jurisdiction), infra.
4
See § 5.01[2] (federal jurisdiction in general); §§ 5.02–5.06 (particulars of federal question and
diversity jurisdiction), infra.
5
See 28 U.S.C. § 133.
6
On appellate systems generally, see § 13.07, infra.
7
See 28 U.S.C. §§ 1291–1292.
19
20 SELECTING A COURT — AN INTRODUCTION CH. 2
federal courts, or federal administrative agencies. The country is divided into twelve
geographic circuits,8 and appeals from the district courts in each circuit are taken
to the court of appeals for that circuit. Appeals from many of the administrative
agencies go to the Court of Appeals for the D.C. Circuit, while appeals from various
specialized federal courts9 are taken to a thirteenth circuit called the Court of
Appeals for the Federal Circuit.10
The United States Supreme Court sits atop the federal system. It has original
jurisdiction over cases affecting ambassadors and in which states are parties, and
appellate jurisdiction in all others.11 While most appellate jurisdiction exercised by
federal courts of appeal is mandatory, meaning that a court of appeals must accept
a properly filed appeal, the Supreme Court’s appellate jurisdiction is chiefly
discretionary, meaning that it is free to decide whether to hear an appeal by
granting a party’s petition to it for a writ of certiorari (“granting cert”). In other
words, a party who loses a final judgment in the district court has a right to appeal
that judgment to the court of appeals. But a party who loses in the court of appeals
usually can only ask (“petition”) the Supreme Court to exercise its discretion to
hear his appeal. (It usually declines.)12
State judicial systems have three or four layers. At the bottom are usually a
variety of courts of limited or special subject matter jurisdiction, authorized, for
example, to hear only traffic, landlord-tenant, small claims or probate cases. All
states also have one court of original and general jurisdiction that hears all claims
not exclusively vested in courts of limited jurisdiction. These claims may include
state claims and most federal question claims, which a plaintiff can assert either in
state or in federal district courts. (The state and federal courts are said to have
concurrent jurisdiction over such federal claims.) State courts of general jurisdic-
tion often exist at the county level, but their designations differ widely. In the
District of Columbia, for example, they are called the superior courts, in Virginia
circuit courts, and in New York (somewhat perversely) supreme courts. To add to
the confusion, in some states these courts also enjoy some form of appellate
jurisdiction over cases originally brought in state courts of limited jurisdiction.
State systems have at least one more layer, a court of exclusively or predomi-
nantly appellate jurisdiction at the top of their judicial systems, variously called the
supreme court, the court of appeals, or, in Massachusetts, the Supreme Judicial
Court. Many more populous states also have an intermediate appellate layer,
roughly corresponding to courts of appeals in the federal system. Intermediate
state appellate courts are created to relieve the caseload burden on the highest state
court. Jurisdiction in inferior state appellate courts is usually mandatory, leaving
the highest state court in the system to exercise considerable discretion in selecting
cases for further review, much like the United States Supreme Court.
8
See 28 U.S.C. § 41.
9
See note 2, supra.
10
See 28 U.S.C §§ 1292(c), 1295.
11
U.S. Const. art. III, § 2.
12
On appellate systems generally, see § 13.07, infra.
§ 2.01 THE CHOICES: STATE AND FEDERAL JUDICIAL SYSTEMS 21
On matters of state law, the highest state court has the last word. However, the
United States Supreme Court has the authority to review state court rulings on the
meaning and application of federal law (including, of course, the United States
Constitution). This creates the possibility of a level above state high courts in
federal question adjudications. In practice, the possibility is remote because, as we
noted above, the Supreme Court usually denies review.13 This means that the
highest state courts, as well as the federal courts of appeal, are, as a practical
matter, courts of last resort in many federal question cases.14
The coexistence of state and federal judicial systems may present the claimant
with a choice of forums. A federal court option exists if the claim exceeds $75,000,
and the prospective plaintiff and defendants are from different states, or if the claim
involves certain questions of federal law.15 The option of trial in state court is less
restricted, available except in the relatively few situations where federal courts
enjoy exclusive subject matter jurisdiction.16 And, as we shall examine in the next
section, geographic affiliations of the parties or claims may offer the claimant the
choice of state and federal courts in more than one state.
13
The Supreme Court has traditionally kept abreast of its workload. Yet the Court has managed this
in recent years only by refusing to review a large number of cases properly within its appellate
jurisdiction. See generally Paul M. Bator, What Is Wrong with the Supreme Court?, 51 U. PITT. L. REV.
673 (1990) (noting the Supreme Court’s high rate of review denial, and positing that this may be a
symptom of a system that is no longer “acceptable and adequate . . . for the essential professional tasks
of stabilizing, clarifying, and improving the national law”); see also Arthur D. Hellman, The Shrunken
Docket of the Rehnquist Court, 1996 SUP. CT. REV. 403 (1996) (identifying a few of the more restrictive
changes in the Supreme Court’s case selection process).
14
Due to its sparing exercise of its discretionary certiorari jurisdiction, the Supreme Court hears
only a small number of federal question cases. Even as early as 1976, scholars asserted that “Supreme
Court review has become an exceedingly unlikely event in most federal litigation.” PAUL D. CARRINGTON,
DANIEL J. MEADOR & MAURICE ROSENBERG, JUSTICE ON APPEAL 209 (1976) (citations omitted). The numbers
still bear this out. In a 12-month period ending September 30, 2011, the Supreme Court reviewed only
0.57% of federal appeals court dispositions of civil suits, and only 2.2% of cases in which petitions for
certiorari were filed. Of the over 12,000 appeals terminated, petitions were filed in 3,193 cases, and review
was granted in only 70. See ADMINISTRATIVE OFFICE OF U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES
COURTS, in ANNUAL REPORT OF THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE U.S. COURTS, tables B-1A, B-2
(2011). The Court seldom explains why review was denied in a particular case — but a few Justices have
acknowledged that a common reason is that an issue lacked sufficient “percolation,” which is Supreme
Court slang that signifies a situation in which at least two Circuit Courts of Appeals interpret the same
federal law in a different manner. See Todd J. Tiberi, Comment, Supreme Court Denials of Certiorari in
Conflicts Cases: Percolation or Procrastination?, 54 U. PITT. L. REV. 861 (1993) (citing H.W. PERRY, JR.,
DECIDING TO DECIDE 230 (1991)). Fewer data exist on Supreme Court supervision of federal question
decisions in state courts, but the lack of effective supervision there appears to be at least as pronounced.
See generally Preble Stolz, Federal Review of State Court Decisions of Federal Questions: The Need for
Additional Appellate Capacity, 64 CALIF. L. REV. 943 (1976).
15
See § 5.03 infra.
16
Plaintiffs can bring certain cases (federal antitrust, patent and copyright, bankruptcy, etc.) only in
federal court. For a discussion of the scope and intended purposes of exclusive federal jurisdiction, see
MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 149–56 (2d ed.
1990); ALI, STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 182–86 (1969); see
also John F. Preis, Reassessing the Purposes of Federal Question Jurisdiction, 42 WAKE FOREST L. REV.
247 (2007) (identifying the traditional reasoning for the existence of exclusive federal jurisdiction, and
positing a few rationales for its continued relevance)
22 SELECTING A COURT — AN INTRODUCTION CH. 2
17
See generally James A. Dooley, Selecting the Forum — Plaintiff’s Position, 3 AM. JUR. TRIALS 553
(1963); Victor E. Flango, Attorneys’ Perspectives on Choice of Forum in Diversity Cases, 25 AKRON L.
REV. 41 (1991); Josh H. Groce, Selecting the Forum — Defendant’s Position, 3 AM. JUR. TRIALS 611 (1963);
RALPH C. MCCULLOUGH & JAMES L. UNDERWOOD, CIVIL TRIAL MANUAL 2 at 89–140 (2d ed. 1980); Marvin R.
Summers, Analysis of Factors That Influence Choice of Forum in Diversity Cases, 47 IOWA L. REV. 933
(1962); Note, Forum Shopping Reconsidered, 103 HARV. L. REV. 1677 (1990).
18
Compare, e.g., Thomas B. Marvell, The Rationales for Federal Question Jurisdiction: An
Empirical Examination of Student Rights Litigation, 1984 WIS. L. REV. 1315 (lawyers representing
students select federal courts because they are more protective of student rights), and Burt Neuborne,
The Myth of Parity, 90 HARV. L. REV. 1105 (1977) (federal courts are superior to state courts in protecting
federal rights), with Michael E. Solimine & James L. Walker, Constitutional Litigation in Federal and
State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213 (1983) (state courts
are no more hostile to vindication of federal rights than federal courts).
§ 2.02 FACTORS INFLUENCING THE SELECTION OF A COURT 23
Lawyers given a choice thus tend to file civil rights actions in federal rather than
state courts.19
The court’s calendar can also be a tactical concern. During the 12-month period
preceding September 30, 2011, for example, the median time from commencement
of a civil action to disposition at trial in federal district courts ranged from just
under 18 months in the fastest district to over five years in the slowest.20 A
plaintiff’s lawyer who is anxious to move the case through trial might file it in one
of the faster federal district courts or opt instead for a state court with a shorter
trial calendar.
Sundry procedural differences between courts may also influence court selec-
tion.21 Extensive provision in the federal rules for discovery — court-supported
fact-gathering by the parties — may attract some lawyers who need discovery to
develop their cases and discourage others who already command the facts or whose
clients are averse to discovery of their facts. Many other procedural factors —
including the availability of jury trial, the composition of jury panels (for example,
are they selected from predominantly urban populations — which some think will
be more liberal in granting money judgments — or rural populations — which some
think will be more conservative?), the required level of agreement for verdicts
(unanimous or majority?), the applicable rules of evidence (will they admit or
exclude a crucial piece of evidence?), and the availability of appellate review — can
influence court selection. Of course, a lawyer’s familiarity with procedures of
particular courts also influences her choice of court. The “home court advantage”
doesn’t apply just to sports teams; lawyers typically opt for their home courts, not
necessarily because the judge will lean their way, but because they know their way
around and the court is convenient for them.
Client characteristics may also be an important consideration in choice of court.
Some lawyers prefer federal courts when their client is from outside the state.22
One study suggests that client characteristics, together with the quality of judges
and the convenience of the court, in fact, are the most important reasons lawyers
choose one forum over another, outweighing procedural considerations.23
Finally, the substantive law that courts will apply can be a crucial factor in forum
choice. Although there is much support in modern choice-of-law theory for the idea
that the law chosen in a case should not vary according to where the case is tried,
local choice-of-law (“conflicts”) rules and the manner in which they are applied do
not always reflect this idea. This can be an enormous incentive for interstate
forum-shopping in search of favorable substantive law.24 Chapter 7 discusses the
19
See, e.g., Neuborne, note 18, supra.
20
2011 ADMIN. OFF. U.S. COURTS ANNUAL REPORT OF THE DIR. Table C-5 (with the Eastern District of
Pennsylvania having the “fastest” time to trial disposition, and the District of the Virgin Islands the
“slowest”).
21
See generally Dooley, note 17, supra, §§ 19–39; Groce, note 17, supra, §§ 9–15.
22
See Flango, note 17, supra, at 105. See § 5.04, infra.
23
Flango, note 17, supra, at 105.
24
For a survey of developments, see Gene R. Shreve, Choice of Law and the Forgiving Constitution,
71 IND. L.J. 271 (1996).
24 SELECTING A COURT — AN INTRODUCTION CH. 2
choice of applicable law in federal court, while the conflict of laws in general is
treated in a companion to this volume.25
Although every plaintiff looks for an advantageous forum in selecting a court in
which to sue (given a choice), courts sometimes decry such “forum-shopping,”
almost imbuing it with a sense of impropriety. But as long as the intersection of
jurisdictional rules and venue provides forum choices, parties will necessarily have
to make them, and, of course, will make them to benefit their clients and themselves.
Indeed, the Model Rules of Professional Conduct comment that a lawyer has a
“duty to use legal procedure for the fullest benefit of the client’s cause,”26 leading
one scholar to assert that this duty “may include selecting a forum with little
connection to the events giving rise to a cause of action if that forum is an acceptable
forum under the law, despite the fact that the attorney may be accused of taking
advantage of ‘loopholes’ or ‘technicalities.’ ”27 To return to the game analogy from
Chapter One, “The rules in litigation include the plaintiff’s ability to choose which
set of rules will govern the game” by choosing the forum.28 These rules guard
against any resulting unfairness, as we shall see. If they waste resources by
providing too many choices, the best solution is probably to go after the rules, not
the lawyers who use them.
25
See generally WILLIAM M. RICHMAN & WILLIAM L. REYNOLDS, UNDERSTANDING CONFLICT OF LAWS Ch.
4 (3d ed. 2002).
26
AMERICAN BAR ASS’N, MODEL RULES OF PROFESSIONAL CONDUCT AND CODE OF JUDICIAL CONDUCT Rule 3.1
cmt. 1 (1983).
27
Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78
NEB. L. REV. 79, 106 (1999).
28
Debra Lyn Bassett, The Forum Game, 84 N.C. L. REV. 333, 336 (2006).