Human beings have always needed a way to resolve conflicts. Much of this conflict resolution is informal, but throughout history we have relied on outside bodies to resolve disputes. These systems have taken forms as disparate as trial by combat, arbitration, and this course’s focus, civil litigation.

In the United States,[1] Civil Procedure is the body of law that structures how civil (as opposed to criminal) litigation proceeds in court. Criminal litigation involves cases instituted and prosecuted by the government (federal or state). The character and penalties associated with criminal litigation are meant to directly represent moral judgment by “the people.” Conversely, while governments can be involved in civil litigation (as plaintiffs or defendants), they are not “prosecutors,” but just another litigant.

Civil procedure, of course, is not the only body of law relevant to civil litigation. The law of evidence, for example, governs what testimony, documents, etc. are admitted as evidence in a courtroom. An entire course at law school is devoted to this topic. The law of remedies, such as whether one may pursue an injunction versus damages, is also vital. We will touch on it briefly at the end of this introduction and in the course, but it is also given a semester-long treatment at many law schools. All of this is to say nothing of the substantive bodies of law that are taught in other courses, any of which may be the subject of the litigation—contracts, torts, property, employment discrimination, patent, copyright, family, and many other types of law.

One helpful analogy to the way Civil Procedure relates to other first-year courses is that Civil Procedure provides the grammar for civil litigation, while Torts, Property, Contracts, etc., provide the vocabulary. Both are needed for language, but they play very different roles. While other courses will teach you what claims you may bring or defend against in litigation, Civil Procedure will teach you how those claims are litigated. While this distinction is real, it is important not to overstate it. As you will see in later units of the course, particularly those concerning the vertical and horizontal choice of law, the line between substance and procedure sometimes gets blurry. A statute of limitations, which determines the last day after a certain act (say the sale of a good) one can bring a lawsuit, is an excellent example: it swims in both the substantive and procedural pool. We will see, as with much in the law, courts end up adopting a more functionalist approach to the substantive/procedural line (e.g., for different kinds of questions, the statute of limitations will be defined as substantive rather than procedural and vice versa). While there are muddy areas, here is a good rule of thumb – if it would be the focus of your other first-year classes, it is substantive law. If it is about how those substantive rules are litigated, it is a matter of Civil Procedure.

While Civil Procedure is not the only thing you need to know to understand civil litigation, it is certainly the indispensable starting point. Not all of you will want to become litigators, the kind of lawyer that files motions, argues in court, and (most rarely of all) tries civil cases in front of a jury. But an understanding of Civil Procedure is essential for transactional lawyers as well. In deciding whether to advise a client to acquire a company, for example, you will need to understand what lawsuits are currently pending, how likely they are to succeed, how long they will take to resolve, etc. It also has a key role to play for lawyers who serve primarily as advisors – your client will want to know if I adopt x policy, how likely is it a lawsuit will occur, and how is that lawsuit likely to go. So, while Civil Procedure is the air litigators breathe, it is vital to many other areas of law.

More generally, we will see that the vast majority of civil cases never make it to trial—they are thrown out of court by procedural devices we will learn about, like a motion to dismiss or a motion for summary judgment, or the litigation ends with a settlement. What is essential to understand is that the decisions to bring a lawsuit or to reach a settlement always operate, to use my colleague Bob Mnookin’s evocative phrase, “in the Shadow of Law.” What that means is that every decision, be it bringing a suit, settling, or indeed organizing one’s conduct (for example, should a hospital invest more to improve the accuracy of an MRI scan), parties are always working against the backdrop of how the law would decide matters and what consequences would result.

The shadow being cast, the background expectation of the parties as to how litigation will be decided, is a function of both the substantive law (does the law provide me a cause of action for this perceived wrong? does it provide relevant defenses?) and the procedure that governs. The professor who taught me Civil Procedure was fond of saying in a thick New York accent: “You take any case and I’ll give you the substance, and I will beat you on procedure every time.” That was something of an overstatement (the professor in question had a flair for the dramatic!) but there was also much truth in it. I often call this theme the “Power of Procedure” – who wins and who loses can often depend on the procedures that govern a lawsuit as much as the substantive law.

To provide a simple example, consider a case about the tort of defamation, the law pertaining to false communications that injure another party’s reputation. Suppose Newman publishes an advertisement in the New York Times stating: “George stole from his last company, Vandelay Industries, and suffers from a vile and loathsome social disease!” George initiates a lawsuit against Newman for defamation. What will happen next?

To prevail, must Newman convince the decisionmaker that the statement was false, or must George convince the decisionmaker that the statement was true? We call this the question of who bears the burden of persuasion. How high is that burden – at the level of a “preponderance of the evidence” or “clear and convincing evidence” (the highest standard, “beyond a reasonable doubt” usually only applies in criminal law)? Who exactly is the decisionmaker – a judge or a jury, and if both are available, who gets to determine which will decide the case? Will the answer be different for different parts of the lawsuit? Which court gets to hear the case, a federal court or a state court? If it is a federal court, which federal court or courts? If a state court, which state court or courts (we will see this implicates jurisdiction and venue questions)?[2] Even if the same substantive law applies, the answers to all these questions are likely to determine whether the lawsuit is brought in the first place, whether the case is settled, and (if the case proceeds) at what stage the court will resolve it. This simple example just scratches the surface of what we will cover in this course and what every lawyer must know before beginning their practice life. This is the power of procedure.

Distribution, Justice, and Procedure

I use the phrase “power of procedure” to describe Civil Procedure in a second way. As you will see in some of the foundational readings at the start of this book, procedure is inherently about power and its distribution. Our choices about how to set up various procedures, while seemingly neutral and bloodless, have deep systemic effects on who wins and who loses in the justice system. These distributional questions are right at the surface of other first-year courses, like Torts and Criminal Law. They are no less important in Civil Procedure, but one must understand the doctrine fairly well before one can understand how it affects this distribution.

To use a simple example, imagine a lawsuit over an allegedly defective toy that may have hurt children. If you require an individual plaintiff to collect lots of facts in the document that initiates a lawsuit (called a Complaint), or else be thrown out of court at the threshold (often by what is called a Motion to Dismiss), that will affect how many such lawsuits are brought, by whom, and under what circumstances. Less obviously, how easy it is to bring a lawsuit and the chance of winning that lawsuit might also have far-reaching effects: whether that particular toy is sold on the market, whether the company selling the toy seeks insurance against future losses in litigation, whether the costs associated with the litigation, the insurance, or changes to the toy to try to avoid losing the lawsuit all get passed on to consumers, or whether the toy company ever sells the toy to start or even goes out of business. Any time one considers making a change to a procedural requirement, one ought to consider who will win and who will lose and, of course, who decides! I often refer to this as the system designer's perspective on Civil Procedure.

One of the most basic system design choices we have made, so basic you may not have noticed it, is that American Civil Procedure is adversarial in its system design. There are parties on opposite sides of the “v.” who are in a form of legal combat. The assumption is that by having opposing parties “duke it out,” we are more likely to get to “the truth” in the sense of “correct resolution on the merits.” As we will see many times in this course, that is a contestable assumption. But more generally, I want to highlight that the U.S. Civil Procedure system’s commitment to adversarialism reflects, in some sense, a particular theory of procedural justice. The famous political philosopher John Rawls once distinguished perfect procedural justice – where if a procedure is followed, a just outcome is guaranteed – from imperfect procedural justice – where if a procedure is followed it makes it likely, but not certain, that the result will be just. Even its most ardent defenders will suggest that the adversarial system provides imperfect, not perfect, procedural justice.[3]

But our system is adversarial in another less obvious sense as well. We put the burden of deciding whether to bring a lawsuit, to fund the litigation, to shape the issues, to select the remedies, to present the evidence, to choose the jurors (if there are any) entirely on the parties on opposite sides of the “v.”: the plaintiff(s) and defendant(s). The court, in the form of a judge, is depicted as a disinterested umpire. This concept contrasts with what is thought of as an important element of many civil law jurisdictions (i.e., other countries), where the judge has a more active role in determining the merits of the case, such as by questioning the witness him or herself. One implication of our choice of the adversarial system is that in many instances the system will only be as good at achieving a just outcome as the adversaries who bring the case. The adversaries may be heavily mismatched in their resources or experience, which may alter the outcome. Importantly, these mismatches are not random, as the Marc Galanter excerpt discusses, among others in this book. There are systematic differences in the resources and capacities of different kinds of litigants, which will translate into the outcomes that occur in a seemingly neutral procedural system. In some instances, both the plaintiff(s) and defendant(s), though adverse to one another on many issues, may also have some joint interests in certain outcomes that are not themselves “just” in the deeper sense of the world. The adversaries are, to a large extent, “out for themselves,” which may leave many third-party constituencies, in neither the plaintiff nor defendant role, without a champion in court.

Notes

[1] While occasionally we will have a brief opportunity to examine how other countries handle civil procedure, most of this course and what follows is distinctly about U.S. Civil Procedure. While it is somewhat parochial, for ease of exposition I will just refer in what follows to “civil procedure” with the “U.S.” part implied.

[2] There is also the question of which law applies. It may never have occurred to you that one state, say New York, might apply the law of a second state, say Florida, to a particular case. And you may never have considered whether federal courts apply state law and vice versa. This is all related to the subject of vertical and horizontal choice law. Parts of this, related to vertical choice of law (also called the “Erie doctrine” after a famous case you will learn about) are taught heavily in Civil Procedure while other parts, horizontal choice of law, are often not taught at all or taught sparingly. Part of what makes this interesting is that the Civil Procedure course will teach you about how to determine which substantive law applies. If this feels hopelessly confusing, it is because we have not gotten there yet, and because (truthfully) it actually is confusing.

[3] Both of these views are to be distinguished from what Rawls called pure procedural justice, which is when there is no independent way to assess the justness of an outcome other than the fact that it came about by way of the relevant procedure. Return to our example of Newman and George and a lawsuit for defamation. There is a “truth of the matter” as to whether the statement made was true or false. A set of civil procedure rules can either make it more or less likely that we get to the truth of the matter, the just outcome. Contrast that with a coin toss and a party calling “heads” or “tails” in the air. If I call heads and it is heads, I win the toss. Is that a “just” outcome? Yes, in the sense that it is the outcome that should follow from the fact that it came about by way of the relevant procedure. But beyond that there is no “there” there. The only marker of whether it is just or unjust is whether we followed the procedure. This is pure procedural justice. Not so with a trial. One can imagine a case where we follow all the procedures and yet we believe the outcome is unjust. This is why Civil Procedure should be thought of as imperfect procedural justice at best: the procedures make it more likely to achieve the outcome but not inevitable. But more importantly we have a conception of whether the outcome is just or unjust that is separate from the question “were the procedures followed”?

1. The Stages of Civil Procedure Very Briefly

Civil procedure is, above all, orderly. I often analogize it to the gears in a watch. Each gear has a function of its own, but it is how they move in tandem that makes the watch work. And of course, if one piece is placed in the wrong place or moves at the wrong time, the watch fails to tell time. Imagine I wanted to teach you how your particular watch worked. I could lay out every gear and say, “See! There you go!” You would find yourself overwhelmed and never understand.

The same is true with procedure. Our method in this course will be to go through things procedural gear by gear. The upside is you will get a manageable chunk to try to understand at once and will be able to understand each “gear” thoroughly. The downside, though, is that until you see enough gears put together (say three or four units of the course), you will not really understand exactly how the mechanisms interrelate. And truthfully only towards the end of the course will you see enough gears moving in tandem to really understand how the system works. I will try to “have my cake and eat it too” by building “loopbacks” into the course. So, for example, when we get to Venue, since parts of the rules for venue relate to two earlier units (Subject Matter Jurisdiction and Personal Jurisdiction), I will use that as an opportunity to remind you of some of that earlier content as well as showing you how the “gears” are moving together.

All that said, in an attempt to give you the big picture up front, I am going to briefly itemize some of the main stages of federal Civil Procedure.

I emphasize federal Civil Procedure because this course, like most Civil Procedure courses taught in the U.S., tries to give you a complete picture of a single court system – the federal court system. From time-to-time, materials on how various state court systems handle the same question will be included for comparative purposes.[1] Luckily, most U.S. state civil procedure systems track the federal system in many respects, so this will be a good starting point. As you study for the bar and begin practicing law in a particular state or states’ courts, you will eventually need to focus more on the divergences.

Now, up until this point it may never have occurred to you that there were federal and state civil court systems, let alone that there are procedural differences between them. Well, there are! Indeed, one key question we will deal with early in the course is the matter of jurisdiction. It is a distinctive obsession of U.S. Civil Procedure to focus on where a case may be litigated – federal or state court or both? And which federal court or which state court?

In the federal system, the primary rulebook is the Federal Rules of Civil Procedure, or FRCP for short. It’s a bit daunting to use at first, but once you get the hang of it, you can see it as a kind of recipe book that will tell you in broad strokes the ingredients and the cooking methods for each stage of the litigation. These materials are organized to provide you the relevant FRCP provisions for each section of the course, but the rules are also collated in a single document. One “pro tip” is that the rules’ numbering largely (if somewhat imperfectly) tracks where the rules are relevant in litigation. For example, FRCP 4 governs how to serve a Complaint on the other side (Service of Process), which happens very early on. FRCP 59 describes how to move for a new trial (Motion for New Trial), which occurs quite late in the litigation timeline after there has been a trial.

With that introduction, here is a brief description of the typical order of civil litigation in the federal courts. It is not meant to be exhaustive and indeed leaves much out, but it sets the basic parameters for what this course will teach you.

(1) Complaint

(2) Service of Process

(3) Motion to Dismiss / Answer

(4) Discovery

(5) Summary Judgment

(6) Trial

(7) Motion for Judgment as a Matter of Law

(8) Verdict

(9) Post-Trial Motions

(10) Judgment and Its Execution

(11) Appeal

(1) The Complaint

A Complaint is a document that states the basis for the plaintiff’s lawsuit and is often divided into a statement of jurisdiction, a recitation of the relevant facts and the law supporting one or more causes of action, and a claim for relief.

As you will learn in Civil Procedure, not every court can hear every case. American law is obsessed with the notion of jurisdiction – the dividing line between various courts. So you will need to tell the court why this particular case belongs before it.

A Complaint will also contain one or more causes of action. That term is actually difficult to define because it is somewhat protean. Basically, it is the grounds for your lawsuit. You can have multiple causes of action in the same lawsuit. To give an example, imagine you were a celebrity who engaged in an affair with someone who had many details and photographs that painted you in a very bad light. You agree to buy this person’s silence and sign a contract whereby they provide you with every copy of everything embarrassing and agree not to publish it. Two weeks later, you see it in all the tabloids; you might sue the source for both the cause of action of breach of contract (breaking the contract) and also defamation (publishing something that hurts your reputation). Each is a distinct cause of action.

Finally, in the Complaint, there’s a claim for relief. That is where a litigant tells the court what it wants if they win. The plaintiff might seek money damages or an injunction (a judicial order for someone to refrain from doing something, or forcing them to do something, or both). The body of law that specifies what relief you are entitled to for particular cases is called the law of remedies. We will touch on it briefly in our course, and it will come up in other courses (contracts, for example, will be a place where you will discuss “specific performance” as a remedy for breach), but we will leave most of the heavy lifting to advanced courses. I will have a bit more to say about remedies in the third part of these introductory materials.

The Complaint is a document. But in fact, it is the culmination of its own set of processes. To put it plainly, there is a huge amount of work that has to occur before you even start drafting the Complaint. You must make strategic decisions as a lawyer about whether to bring a lawsuit at all. If you decide to bring a lawsuit, you must choose where to bring your lawsuit (we will get to that in a moment). You must also ascertain the facts from your client, potentially interviewing others and looking for documents that might be relevant. You have to determine what causes of action you might bring. And you must decide how you will frame your claims to try to make them sound sympathetic.

Certain kinds of lawyers face additional types of strategic challenges—cause lawyers (such as racial justice, gay rights, or gun rights litigating organizations) have flesh-and-blood clients, but they have often been chosen because they are the ones with claims that are most likely to help establish an important precedent that will have value to a much larger number of litigants. How do you balance your obligations to your client and your obligations to a movement? What rules govern when you can turn down a client or when you can end a representation? What happens when the client wants you to do something you are against? We will occasionally brush up against questions like these, but they will be more front and center in courses you take later in your law school career on professional responsibility or cause lawyering, and you may face them yourself in clinical courses where you will learn by doing.

(2) Service of Process

Once you have drafted your Complaint, you must file it with the court and also provide it to the other side—the defendant or defendants. This method is called the service of process. Because it is the first time the other side will be notified that they are being sued, we have very specific rules for how this has to be done. We are much more finicky about this, as system designers, than we are about “ordinary” motion practice—the filing of motions. A motion, generally, is a written or oral application made to a court or judge to obtain a ruling or order in one’s favor, and the person making it is called a movant. Motions come in all shapes and sizes. Some are very serious ones, like a motion to dismiss a case, while others are more minor ones, like a motion for an extension of time to file something.

(3) Motion to Dismiss and Answer

Now having been served the complaint, the defendant[2] has their first opportunity to respond. They may either file a motion to dismiss or an answer. To simplify somewhat, a motion to dismiss is a motion that says to the court, “even if you were to assume, judge, that every fact mentioned in the complaint was true, this case should not be heard and instead should be dismissed.” As you will learn, this may be because of jurisdiction—“this is the wrong court”—or because the complaint is insufficient to support the cause of action or several other possibilities.

The alternative at this stage for the defendant is to file an Answer. Again simplifying greatly, here the defendant goes line by line through the Complaint and meets it on the chosen battlefield. The defendant will explain whether each fact alleged in the Complaint is true, false, or whether the defendant, for some justifiable reason, cannot say whether it is true or false. In the Answer, the defendant may also introduce certain defenses to the claim or bring their own claims against the plaintiff (which are called counterclaims).

Defendants typically have the choice to bring an Answer or a motion to dismiss. But if the defendant brings a motion to dismiss and the court does not grant it, they will then have to go back and do the answer instead.

(4) Discovery

If a case is not dismissed, there will typically be an opportunity for discovery. The U.S. was a pioneer in this area, but now many other countries have adopted some form of it. Discovery is basically the way that one party makes another party—or in some cases, a non-party—provide information needed for the case. There are many different discovery devices, including things like asking for documents, requiring an opposing party to answer interrogatories—questions that must be answered on paper—and depositions. In an oral deposition, a person is asked questions under oath in front of a court officer and a transcript is taken. Just like a trial itself, there can be cross-examinations and even objections raised.

(5) Summary Judgment

Typically, after there has been at least some discovery, either party can bring a motion for summary judgment. Again, to simplify greatly, this is a motion that says to the court, we do not need a trial in this case, we can decide this right now. For the defendant, typically they are saying, “If you look at everything each side has received in discovery, Your Honor, if this were the kind of evidence we would see at an actual trial, there is no way any reasonable juror could find for the plaintiff. There is no ‘genuine issue of material fact’ in dispute, so I should win. There is no need to have a jury decide the issue.” On the plaintiff’s side—and this works less often—the plaintiff is saying, “If you look at everything each side has received in discovery, Your Honor, if this were the kind of evidence we would see at an actual trial, there is no way any reasonable juror could fail to believe that I established what I need to establish to win. That is, there is no way a reasonable juror could find for the defendant. Because my case is so strong, we do not need a trial, Your Honor.”[3]

If a case is disposed of by summary judgment, then it is over. It could also be partially disposed of in what we call partial summary judgment, while what remains moves forward. What goes forward is said to go to trial.

(6) Trials

There can be both bench trials, before a judge, and jury trials, before a jury. The civil jury is a very U.S.-specific institution, and this course will cover how jurors are selected and dismissed. You will also learn that only for certain kinds of cases are you entitled to a jury, a matter that is partially determined by the U.S. Federal Constitution. But while this stuff is very fun and is most of what you have seen on TV, as has been emphasized earlier in these materials, very, very, very few civil cases in the U.S. actually go to a jury trial. If they do go to trial, evidence will be presented, and there are very important rules about what counts as evidence, how it may be presented to the jury, etc. These rules are so important that we actually devote a whole course to the subject—the course of Evidence. There are also courses devoted to how to argue to a jury or a judge, so-called “trial advocacy” workshops. And, of course, if you take clinical courses in future years and sometimes through Student Practice Organizations, you may find yourself actually doing that kind of advocacy yourself.

(7) Judgment as a Matter of Law

Now, not all civil trials culminate in a jury actually rendering a verdict. That is because during the trial there is an opportunity for either side to make what is called a motion for judgment as a matter of law (JMOL). In some states, this motion is still called by its older name—“a motion for a directed verdict.” This motion is, in some ways, quite similar to a summary judgment motion in that the party is saying to the court: “Given the evidence at trial, no reasonable juror could think I should lose the case so, Your Honor, please enter judgment to that effect right now, and let’s not even ask the jury to deliberate.” One key difference we will see is that while summary judgment is based on the record at discovery, and imagining what might be put forward at trial, in motions for JMOL we have actually had some or all of the trial, so at least some of the evidence has already been presented.

(8) Verdict

If that motion is not made or it is denied, the jury will go ahead and deliberate and hopefully reach a verdict. Before they deliberate, the judge will charge the jury using jury instructions which instruct the jury about what law to apply, and what it ought to do or not do as part of the deliberation. The parties to the litigation often submit proposed instructions for the judge to consider, and there are also many model jury instructions for different kinds of cases in every jurisdiction. The most common form of verdict is a “general verdict,” where the jury merely has to determine who prevails and how much should be awarded (if there is a question of damages). Much less common is a “special verdict” wherein the judge submits to the jury a series of questions they answer but does not tell the jury to determine the ultimate legal effect of those answers (e.g., a jury might be asked, “Was it foreseeable that Product X would be misused by children?”). The judge then takes those answers and converts them to a determination of who should prevail and what damages, if any, should be given. There is also a “general verdict with interrogatories,” which is a sort of hybrid of the two. In those cases, the jury makes an ultimate determination, but the judge also asks them a series of questions. As we will see when we discuss issue preclusion, the jury’s answers to some of those questions can have long-lasting effects beyond the trial itself.

(9) Post-Trial Motions

The party that loses the verdict can then make a series of post-trial motions, which seek to get the court to upset the verdict in one way or another. Three such motions are important to know. First, the renewed motion for judgment as a matter of law (also referred to as judgment notwithstanding the verdict, or J.N.O.V., which is a call back to the Latin phrase, non obstante verdicto) is very similar to the motion for JMOL but it is brought after the verdict. Second, the motion for a new trial, does not seek a “win” in the sense that the court should enter judgment for “my” side, but instead asks for a “do-over”—that is, a brand new trial on some or all of the case. As we will see, this could be because of a serious error that occurred as to the admission of evidence or how the judge ran the trial, or it could be a claim that the verdict went against the great weight of the evidence. Third, there is the motion for relief from a judgment or order under FRCP 60, a somewhat “Hail Mary” set of maneuvers that one might try.

(10) Judgment

If these motions are denied, or not made, the court will enter a Judgment in the case. This order will specify whether a party must pay another party money damages, whether an injunction should be issued, etc. At that point, additional steps must be taken to execute the judgment. For example, if the plaintiff gets money damages from someone, they may seek to garnish the defendant’s wages—that is, deduct a certain amount every month to get paid back over time. Or, if the litigation was about a diamond ring, they may need to get a sheriff to actually go over and take possession of the ring in question.

(11) Appeal

At that point, the litigation has met its end in terms of the trial court. But if you are the plaintiff or the defendant, and you lost the case, the fight is not yet over. You can try to take an appeal from the judgment of the trial court. In some limited circumstances, you can also take an appeal from an earlier stage of the proceeding (referred to as an interlocutory appeal). In both the federal and state systems, courts are hierarchically organized such that you typically take your appeal to an intermediate appellate court.

In most cases, you have an automatic right to appeal to that court. In that appeal, the losing party below is the appellant, and the winning party below is the appellee. There is something known as a cross-appeal, where both sides are unhappy with something below, and each has something they want changed. Once that appeal is concluded, one can also potentially seek to appeal further to the U.S. Supreme Court or, in a state system, the state Supreme Court.

---

Well, that is the outline of the steps of a case in civil procedure: Complaint; Service of Process; Motion to Dismiss / Answer; Discovery; Summary Judgment; Trial; Motion for Judgment as a Matter of Law; Verdict; Post-Trial Motions; Judgment; and Appeal.

Did you get all that? Probably not, to be honest, and I do not expect you to. Much of this course will be about breaking out each of those steps, the “gears” I referred to earlier. But it does help to start with a general sense of the whole shape of the system. As we start a new unit or you get confused as to where we are in the civil procedure process, you may find it useful to return to this overarching outline. In the next subpart, I take you through much of this again by describing how the course is organized.

2. The Design and Organization of This Casebook

This casebook is organized to mostly track the same stages of procedure set out above. I say “mostly” because it does start with some fundamentals about Due Process and on some occasions goes “sideways” into important pieces of the system, such as personal jurisdiction, subject matter jurisdiction, venue, joinder, choice of law, etc.

More formally, here is how the book is set up:

Unit 1, which includes the introduction you are reading, also provides some more theoretical readings as framing, some background on the Rules Enabling Act (which allows the promulgation of the FRCP), and a seemingly simple (but really not so simple) introductory case.

Unit 2 introduces you to the basics of pleading in the federal system, namely the Complaint and the Answer. We will loopback to these materials in Unit 7 when we spend more time on the motion to dismiss, which tests the sufficiency of the pleadings. Unit 2 also introduces you to FRCP 11, the rule meant to ensure the truthfulness of the pleadings and other representations to the court. This will introduce you to the professional responsibilities of an attorney in the federal civil system.

We will then spend four units on what I call “preliminaries.” These are things a litigant or a system designer thinks about at the very outset of a case or of system design and is our first “sideways” march from the progression of a simple civil action in federal court.

Unit 3 is entitled “Preliminaries 1: Notice, Service of Process, Opportunity to be Heard.” This unit introduces you to some of the constitutional law that sets a floor for the civil adjudicatory system, the Due Process clause of the 5^th and 14^th Amendments to the federal Constitution from which we derive obligations to provide notice and an opportunity to be heard to litigants. These materials will mostly focus on the constitutional interpretation given to these provisions by courts. We will then briefly discuss the more practical question of how one initiates a lawsuit after drafting a complaint, which is called “Service of Process,” a matter governed in the federal system by FRPC 4. Finally, this unit will introduce you to a preliminary injunction, a form of remedy available from courts. This part of the unit serves as a mini-introduction to the law of remedies. While this last bit could go somewhere else in the course, it is useful to discuss it early on to help you understand a bit more about why parties bring lawsuits; and because the test for granting a preliminary injunction echoes some of the constitutional ideas behind providing an adequate opportunity to be heard.

Unit 4, entitled “Preliminaries 2: Subject Matter Jurisdiction,” seeks to answer the following questions: when may a case be brought in federal court? When must a case be brought in federal court? We will begin by trying to understand the strategic reasons why a litigant might prefer to be in federal or state court. We will then turn to the doctrine on the matter, which has some constitutional law but mostly is governed by statute.

If the prior unit was about the “vertical” allocation of power between federal and state courts, Unit 5, “Preliminaries 3: Personal Jurisdiction,” is about the “horizontal” allocation of power. If a case is brought in state court, which state’s court can hear the case? E.g., Massachusetts state court? Hawaii state court? Both? Neither? If a case is brought in federal court, in which state may the federal court hear the case? E.g., Massachusetts federal court? Hawaii federal court? Both? Neither? Answering these questions will require us to spend considerable time on U.S. Supreme Court decisions interpreting the Due Process clauses of the federal Constitution, and spending a little time on the FRCP and state statutes.

Unit 6, “Preliminaries 4: Venue, Transfer of Venue, Removal, Forum Non Conveniens,” closes the preliminaries by discussing venue and then a set of materials that are all about moving cases. In the federal system, even in a federal court in a particular state there may be more than one possible venue. So, for federal district courts in New York state, there are four venues: the U.S. federal district court for the Southern District of New York, the U.S. federal district court for the Eastern District of New York, and so on for the Northern and Western districts. By contrast, some states like Massachusetts only have a single venue. The law of venue tells us which among multiple possible venues are proper for bringing an action—it is a statutory test, but the test itself will give us an opportunity to loop back and review parts of subject matter and personal jurisdiction from prior units. Transfer of venue is also statutory and is the law of moving a case from one venue to another. Removal is the law authorizing moving a case from state court to federal court and is also primarily statutory law. Finally, forum non conveniens, which has particular salience for international litigation, is a common law doctrine for dismissing a case when it has been brought in an “inconvenient” forum (we shall see that is a term of art), with the idea that it will instead be brought in another court.

Unit 7, “The Motion to Dismiss for Failure to State a Claim, More on Pleadings, and Other FRCP 12 Motions,” brings us back to where we left off with the Complaint and Service of Process. When a defendant is served a complaint, they may file a motion to dismiss under FRCP 12. This unit will show you how some of the things discussed in the preliminaries may form the basis for a motion to dismiss. For example, one might seek to get a case dismissed for insufficient service of process or insufficient process (Unit 3), lack of subject matter jurisdiction (Unit 4), lack of personal jurisdiction (Unit 5), or improper venue (Unit 6). We will also introduce a new way to get a case dismissed, dismissal under FRCP 12(b)(6) for “failure to state a claim upon which relief can be granted.”

This topic will bring us into a policy discussion in our system designer roles—how much should we require a plaintiff to bring forth in their complaint to continue their claim versus getting dismissed? Notice that typically only those who survive a motion to dismiss will get discovery—until discovery, there is no way to compel the other side to answer your questions on the record or turn over documents. How should we set the threshold for access to discovery? I often refer to the motion to dismiss for the failure to state a claim as the first of several “gates” or “guillotines” that a plaintiff has to survive to move forward. One way of understanding the system design question is how sharply we want this first guillotine to cut in relation to others later on (summary judgment, judgment as a matter of law, etc.). How do we sort the wheat from the chaff? Who wins and who loses based on how we set the metrics? This unit will also much more briefly introduce you to some of the other motions one can make under FRCP 12.

Unit 8, “Joinder,” is another “sideways” step. Up until this point in the course we will be focused on a “simple” (scare quotes very much intended) civil action with a single plaintiff and single defendant and a single claim.[4] In this unit, we will learn the law that governs when we can make things more complicated. When can a plaintiff have a co-plaintiff or sue more than one defendant? Can a plaintiff combine a claim for defamation and for patent infringement against the same defendant? Suppose one is sued as a defendant, but someone else owes that defendant indemnification. Can that first defendant bring in the party who should indemnify them (called impleader or third party practice)? When can one amend a pleading to change the original configuration of the case into a different one? This material will focus on the FRCP joinder rules, but we will also see that joinder questions almost always implicate issues of subject matter jurisdiction (Unit 3), such that this will be a helpful place to loop back to review and extend that material.

Unit 9, “What Law to Apply? Vertical (Erie) and Horizontal Choice of Law,” is another “sideways” step. If a federal court hears a case, what law does it apply? Federal law or state law? On which issues? If state law, which state’s law will it apply? This unit, which mixes Supreme Court interpretations of the Constitution and statutes, will introduce you to these thorny but extremely important issues.

Unit 10, “Discovery,” returns us to the regular flow of a civil action in the federal system. Assuming one has survived a motion to dismiss (Unit 7), or none was made, the parties now have the opportunity to engage in discovery and compel other parties (and in some cases non-parties) to answer questions, provide documents, etc. This unit will briefly introduce you to discovery devices such as interrogatories and depositions. This is largely governed by FRCPs.

Unit 11 brings us to the second of our “gates” or “guillotines”—“summary judgment.” We will learn what a plaintiff or defendant must do to successfully move for summary judgment, and what the opposing party must do to avoid the case being decided against them on summary judgment. We will also discuss the thorny questions of when video evidence should be used for summary judgment, and how we should think about what the judge is doing in making a determination about a “reasonable juror” against the larger backdrop of U.S. democracy and the allocation of power between a judge and a jury. This unit will focus on FRCP 56 and judicial interpretations thereof.

Unit 12, “Introduction to Trial,” continues that discussion. Besides learning the very basics of how trials operate, we will discuss how jurors are selected and when peremptory and for-cause challenges may or may not be used. What does it mean to have a fair or “representative” jury in a country as fractured as the United States? When is it appropriate for an attorney to try to choose a jury that will favor their client, and when does it subvert democracy? We will also learn about the constitutional rules of when one is entitled to a jury trial in civil matters. Finally, we will discuss the third of our “guillotines” or “gates”: judgment as a matter of law governed by FRCP 50.

Unit 13 describes three post-trial motions, all found in the FRCPs. The Renewed Motion for Judgment as a Matter of Law, the Motion for a New Trial, and the various FRCP 60(b) motions for relief from judgment.

At this point we will have seen a single civil case in the district court from start to finish. Unit 14 then considers briefly how appeals work. Our primary focus will be understanding appellate jurisdiction – a mix of statutory law and some judge-made common law. We will also briefly discuss standards of review on appeal.

Finally, Unit 15 discusses “Former Adjudication and Preclusion.” This topic is the body of law, largely common law, regarding when the resolution of a first-in-time case precludes bringing a new case or requires treating as decided some element of that new case. We will learn about the twin doctrine of claim preclusion (sometimes also called “res judicata”) and issue preclusion (sometimes also called “collateral estoppel”).

If time permits, once we finish all of these materials, we may introduce some material on class actions and alternative dispute resolution (ADR). Usually time does not permit, but hope springs eternal.

That, in a nutshell, is the casebook and this course.

Notes

[1] Even more occasionally, the materials will discuss Indian tribal and non-U.S. court procedures as points of comparison.

[2] I will continue to use the singular “plaintiff” and “defendant” for ease of exposition. But there can be multiple plaintiffs and multiple defendants in cases each of whom might have their own lawyers, their own priorities, etc. There may also be multiple claims against a single defendant, or multiple claims or multiple defendants. When are you allowed to bring complex cases? This is answered by the joinder unit of the course, as well as for advanced civil procedure the law pertaining to class actions and multidistrict litigation (MDL).

[3] Now one of the reasons why it works less frequently for plaintiffs is that plaintiffs typically have the burden of persuasion on most issues, a term mentioned above. The plaintiffs are the ones that have to convince the court that the evidence for their claim is above a certain threshold. You'll learn about these thresholds in various courses. But in civil cases, the most common one is called preponderance of the evidence. That means more likely than not. Courts do not like to give numbers to these things but one way of thinking about it is whether a plaintiff can prove an essential element of their case “above a 50% level”? If there is a fact in dispute, and the plaintiff must prove that fact to win their case, then typically they must prove that the fact is more likely than not to be true.

[4] We occasionally will deviate from that simplicity, for example towards the end of the materials on subject matter jurisdiction when we discuss supplemental jurisdiction, but we will not focus on when one can join multiple claims or multiple parties until we get to this unit.

1. Big Themes

There are many themes that come up in Civil Procedure, but here I want to call out a few of them to be on the lookout for:

Federalism: This is a ubiquitous issue in U.S. law. In its “vertical” form, we ask how we allocate power and responsibility between the federal and state systems. We will see this issue prominently in discussions of federal subject matter jurisdiction and the Erie doctrine. The “horizontal” aspect pertains to how power is allocated between states in the union. This theme will recur in discussions of personal jurisdiction and other areas like horizontal choice of law.

The Power of Procedure and Who Wins and Loses from Various Choices: This was discussed above in Part 1.

Trans-substantivity: In a trans-substantive procedural system, the same rules apply to all civil actions—so antitrust cases operate under the same rules as employment discrimination cases. FRCP 1 commits the Federal system to a largely trans-substantive approach: “These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81.” However, one will find departures from this ideal in some areas, such as pleadings (we have a category of special pleading rules for things like fraud in FRCP 9). Even when there is no formal demarcation between kinds of civil actions, courts may sub rosa treat them differently procedurally speaking. How much trans-substantivity is desirable? When are departures justified? Who should decide?

Rules vs. Standards: This is a system design question that applies to almost all forms of law and has extensive treatment in the Zero-L materials that I won’t reproduce here. In Civil Procedure, we will often see choices between approaches that are more rule-like or more standard-like. Often, as we will see, the courts try to be pragmatic and take into account where one is in the process of litigation and the relative capacities of the court and parties. So, for example, the rules pertaining to diversity of citizenship federal subject matter jurisdiction are very rule-like because one has to make a threshold decision very early on, and it is good for that decision not to depend too much on deeply contested facts or balancing. Elsewhere the system seems to have evolved to become very standard-like—some parts of personal jurisdiction have this flavor—in my humble opinion for the worse.

Gamesmanship: Gamesmanship is a loose concept that refers to the ability to use the rules in one’s favor without breaking them but in a way that cuts against the spirit of the rules. Good lawyers learn existing “tricks” but also devise new ones. As a system designer, one will often be asked to determine just how far one should go to stamp out such gamesmanship and when the costs of doing so (such as additional steps or procedural complexity) are worth it. More philosophically, there is a question of resource distribution and expertise. Should we design a system that allows those with more sophisticated (and often more expensive!) lawyers to do better or a system that tries to nullify those background differences between lawyers? While it is easy to frame the question in black-and-white terms, we shall see that a system designer’s choices may vary across different kinds of procedural questions and different kinds of advantages.

Public vs. Private Rights Models of Adjudication: This introduction started by contrasting trial by combat, arbitration, and civil litigation as systems of dispute resolution. This theme focuses on private parties who have a dispute and need it resolved. That is very appropriate as a description of civil litigation, but it is not all that civil litigation is. Consider Brown v. Board of Education. It would be possible to describe it as: “a dispute between parents about whether their kids could attend a certain school,” and imagine a court merely trying to “make peace” and bring a community together and heal wounds. But we conventionally also see it as something quite different: an important resolution of conflicting public values where the court will declare norms and shape society. Both of these models are present in civil litigation, but not always to the same extent. Sometimes a system designer faces trade-offs between these two models. For example, a private rights model of litigation firmly puts the litigants in the driver’s seat and allows them to design the lawsuit and decide how to proceed and how to settle it. But civil litigation also uses public resources and calls on the legitimacy of the court system as an imprimatur on what is resolved. Sometimes even when both parties agree on a particular procedural element, the court will have a responsibility to say no in the name of public good. Where do we draw that line?

The Shifting Sand of Fairness and Conflicting Theories of Procedural Justice: Very often in the course of law school, someone will say, “what the court did was unfair,” or, “resolving the issue this way would not be fair to the parties.” Speaking in terms of fairness comes naturally to us, but as civil procedure will show us, the content of what we mean by fairness is far trickier. Sometimes we will expose conflicting conceptions of justice and even conflicts between various theories of procedural justice (see Part 1 for discussion).

2. Four Useful Perspectives

When approaching Civil Procedure (actually, in my opinion, any area of law), it is useful to think of four different perspectives one might take in the discourse, or different roles that the course might cast you in at various points.

First is the advocate. “Counsel, why should there be personal jurisdiction over Volkswagen in Oklahoma?” This is a role that involves making the best argument for an assigned side. The best argument is not always a winning argument; you play the cards you are dealt. It is also not a “blinded” argument in the sense of ignoring the arguments from the other side. Part of the skill of advocacy is understanding when to acknowledge weaknesses in one’s own case and how to maneuver around them.

Second is the role of the judge. “If you were the judge in the case, would you decide there was personal jurisdiction in Oklahoma? Why?” In this role, you are asked to make a good faith effort to come to the right, or at least most right solution. To be clear, this is not a purely open-ended question of what outcome you like better. Judges are constrained by the legal materials in the world and are not totally unfettered. How much latitude they have and what kinds of things constrain them is something we will discuss in some of the legal theory materials in this course and something you will debate in law school. There have been major legal movements—formalism, American legal realism, Dworkin, Critical Legal Studies, Critical Race Studies, etc. devoted to this exact question. As you learn more about both the theory and the practice of decision-making in law, do not be surprised if your own thinking about how judges do and ought to decide cases shifts over time.

Third is the system designer. We often say, in law school, “if you were czar or czarina what rule would you lay down and why?” I am not sure why we are such Russophiles in the phrasing, but that is a phrase that is often used! This is the time to be a little bit more open. There’s a much wider range of arguments that might convince you, which are not available to the judge, who is more constrained by precedent. In a famous essay called Two Concepts of Rules, the philosopher John Rawls usefully captured the difference between arguments available in setting up an institution versus those available within an institution by reference to baseball. There are arguments why baseball should have four strikes, not three, for an out, but those are not arguments available to a particular player who has just had a third strike to argue in his particular case. In some ways, I think this nicely captures the difference between the system designer and the judge: the difference between arguments outside and within an institution. When thinking about system designers as legislators, sometimes we ask you to think about an actual, not an ideal, legislator. Picture your senator or congresswoman. She has a party chairman, a whip, donors, constituencies. How do those affect her decision?

The final role is that of the critic. This person sits outside of the existing structure and gazes at it in a much more radical way. For example, rather than adjust the standards for a motion to dismiss to consider the reality that different litigants have different resources, the real problem is that individuals are allowed to hire and pay for their own lawyers. Or, instead of arguing about when in property an individual should be required to provide an easement to allow for beach access, the real problem is thinking that anyone owns property at all! Even for the critic’s role, these are pretty radical approaches to the critical enterprise—there are plenty less radical but no less critical positions. As I think of it, the system designer is trying to make the system we have better while the critic is challenging the foundational premises of that system, sometimes with a counterproposal and sometimes merely in the name of critique and visibility.

All of these roles have a place in Civil Procedure and in law school, but it is key to understand the role or register in which a conversation is happening at a particular moment. If two participants in a conversation are speaking at different levels simultaneously, they are more likely to talk past one another than meaningfully engage in productive discourse.

3. A few more ancillary matters.

Finally, there are few more ancillary matters that are good to know at the start of the course.

Motion practice: As mentioned above, much of civil procedure happens on the back of motions, which are how a litigant asks the court to do something. They are most often made in writing and involve stating with particularity what is requested and the reasons supporting the request. Often this involves serving the other party the motion, a brief or memorandum of law supporting the motion, and in some courts a proposed order, all signed by the attorney (and governed by FRCP 11, which we will discuss in Unit 2 of the course). Local rules of individual courts will specify how the motions should be presented.[1] The non-moving party then has an opportunity to respond in a fixed period of time. Sometimes the court will decide the motion “on the paper” and at other times will hold a hearing.

Remedies and the Law/Equity Distinction: As mentioned above, the law of remedies is a fascinating and very important part of litigation, but one that we only touch on briefly in Civil Procedure. It is useful to distinguish three broad categories of remedies. Compensatory relief is most associated with money damages—it is typically an order for one party to pay the other party a sum of money. Specific relief is an order directing conduct. For example, a preliminary injunction to remove a cross from a particular public park during the pendency of litigation, or to refrain from using a particular wording on a product that is alleged to violate trademark. Another example you will encounter in a contracts class is called specific performance, which mandates completing a contractual term. For example, an order for a dressmaker to produce the specific wedding dress promised to a party. Declaratory relief is a court order defining the rights and obligations of the parties without any other remedy. In some instances, that is all the parties need—they know they want to proceed in a certain way but are unsure whether a contract or a law allows them to do so, so they go to the court to get a declaratory judgment clarifying the matter. As compared to compensatory or specific relief, declaratory relief is relatively uncommon.

The distinction between types of relief is relevant to the “law-equity distinction” we will discuss several times in the course, especially during the material on jury trials. In England, whose civil procedure system heavily influenced the U.S., there were different kinds of courts for different types of needs. To give you the “very very short” version: there were law courts and equity courts (the latter often called chancery). The law courts could provide compensatory relief, but only equity courts could provide specific relief (this is a gross oversimplification but good enough for the first day of Civil Procedure). When the FRCP system was created in 1938 in the U.S., it “merged” the law and equity courts into a single unified court system that could give any kind of relief sought. However, some of the original divisions between the two court systems pop up here and there. It is often said that “jury trial is the sword in the bed between law and equity,” and we will see in the jury trial unit that the constitutional right to a civil jury trial will require us to go back and analyze whether a case would have been litigated at law or equity in England.

* * *

Have you got all that? Assuredly not, and that is completely to be expected. I will be happy if you absorbed about 40%! This document is meant to be the kind of thing you read once now, but then return to as we start filling in bits and pieces. Hopefully, it at least whets the appetite for the materials that follow and gives you an overall sense of the shape of things.

Notes

[1] When students finish Civil Procedure, they sometimes hopefully think they have learned it “all” at least far as the procedural rules of the federal courts in the areas of the course we cover. Sadly, beyond the FRCP, there are also local rules which may be at the level of a Circuit Court, a district court or an individual judge as to how the judge(s) like things done. Where an FRCP clearly specifies something, it governs. But there are many smaller questions (like how one arranges to or cites to the appendix) that are governed instead by these local rules. A common assignment for a summer associate is to check the local rules one more time just before one is about to file a brief or motion to make sure everything is in order.

Form of Pleadings

(a) Caption; Names of Parties. Every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.

(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense.

(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.

Video 1

Formalism Video 1 (14mins)

Formalism Video 2 (10mins)

Formalism Video 3 (10mins)

Legal Realism Video 1 (15mins)

Legal Realism Video 2 (10mins)