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I. Course Summary and Class Structure
This course covers an area of law that clearly distinguishes "lawyers" from all others: the process and rules governing how civil disputes (that is, excluding criminal cases) are routed through the courts and the effects of judgments rendered by those courts. After this course, law students can finally begin to feel as though they are clearly on the path to becoming lawyers, as opposed to any other well-educated members of our society. This course is not just for litigators, however. On the contrary, since only a small fraction of disputes actually make their way into, let alone through, the judicial process, this course is practically best understood as an exploration of the (quite negative) alternatives to the most common dispute resolution outcome: settlement. Most importantly, it focuses on how competent lawyers can strategically use the procedural rules to advance the interests of their clients, before, during, and after a litigated dispute. As the case file supplement demonstrates, the rules of civil procedure are often just as decisive of the end result of a dispute as the applicable substantive rules (if not more so). The various courts (state and federal) in this country have various procedures, but all of them share a common core, which will be the focus of this class. The principle focus of the rules covered in this course will be the Federal Rules of Civil Procedure, because of their high profile, careful drafting, voluminous and easily accessible case analysis by generally thoughtful federal judges . . . and also because this is how U.S. law schools have almost always done it. That being said, I will periodically try to contrast the federal approach with the sometimes quite different approach of the Illinois rules of civil procedure.
To maximize the potential for productive classroom discussion, I have tried to limit the length of assignments, and you should be thoroughly prepared to discuss the note questions, problems, and case supplement documents assigned. We're all in this together, and my goal is to improve your lawyering skills, not to make anyone uncomfortable when called on in class, so do your best to relax and engage in a professional discussion of material in which often no clear "correct" answer exists. I suggest that, the first time the casebook calls for reference to a Federal Rule of Civil Procedure or other law, you read the rule carefully and think about how it might apply in the real world. In class, we will explore real and hypothetical situations implicating these rules together, to prepare you to do the same on your own after you leave law school.
II. Course Goals
The primary goal of this course is to develop in each of you a facility to formulate and implement strategies for properly applying the Federal Rules of Civil Procedure, in both pursuing and defending against civil claims, in the pre-trial, trial, and post-trial processes. We will also develop a critical view of the nature of litigation today, the goals of dispute resolution, and the best ways for us as lawyers to help our clients achieve appropriate resolution of their civil disputes while maintaining our own professional integrity. Because this course focuses in large part on a set of statutory rules, we will also continue to refine our statutory interpretation skills to enhance our ability to read and understand the relevant rule when we have found it. By the end of this course, you should be able to do the following:
appreciate and explain to a litigant-client the various stages of a civil case in federal court, including the enforcement of judgments, and assess the potential financial benefits and burdens of pursuing or defending such a case;
assess and evaluate federal civil complaints, answers, and pre-trial motions for compliance with legal requirements, appreciate lawyers' ethical obligations when drafting such documents, and develop strategies for both plaintiffs and defendants in advancing these documents;
differentiate among the various forms of discovery, and understand the limitations and potential of each type for pursuing information, including the financial implications of each;
interpret any given provision of the Federal Rules of Civil Procedure, both in isolation and in the broader context of the Rules and general practice within the federal civil justice system;
and ultimately, synthesize the Federal Rules of Civil Procedure and the rules of former adjudication (preclusion) to analyze and evaluate fact hypotheticals to determine a litigant-client's legal position with respect at any given stage of a civil litigation case.
III. Required Materials
Yeazell & Schwartz, Civil Procedure (9th ed. 2016), Aspen, ISBN 978-1-4548-6834-7. "Could I get by with the 8th edition?" Probably, but it would be painful, and you would not get everything I want you to get out of the new edition, including some important changes in the law. It's your call on whether to risk a lower grade, but I strongly recommend the new edition.
Any supplement containing the most recent version of the Federal Rules of Civil Procedure (including perhaps the one you might have purchased for the Yeazell book). I recommend LegalPub's compact and inexpensive Federal Civil Rules Booklet (LegalPub.com/product-federal-rules-of-civil-procedure.html). You can also refer to the Rules online, but you must be ready to apply these rules on the fly during class, so I suggest you just spend the $25 to buy a supplement.
Nan D. Hunter, The Power of Procedure: The Litigation of Jones v. Clinton (2002), Aspen, ISBN 0-7355-2825-X. This is a litigation case file supplement, which shows you what actual litigation documents look like and walks you through the strategy behind them; that is, what the lawyers who drafted these back-and-forth documents were thinking and how you should read them. This supplement is designed to prepare you to know what you're actually supposed to do in the real world when you get out of this class.
You will be evaluated primarily based on your performance on one final examination consisting of a series of essay, short answer, and multiple-choice problems (to increase the scope of material tested). You may bring with you and refer to during the exam anything that is neither alive nor disturbing to other students. Class participation is especially important to me, however, so I reserve the right to adjust your final grade up or down by as much as a full letter grade, though most likely no more than a + or - based on the quality (not necessarily quantity) of your contribution. You do not necessarily have to announce the "correct answer" immediately to receive an upward adjustment--concerted and reasoned efforts to grasp the materials, and especially voluntary and well-reasoned responses to questions posed in class, may lead to an upward adjustment. Extreme absenteeism, frequent requests to be excused from class discussion, and failure to be prepared for the next class after being excused from class discussion, will provide the basis for a downward adjustment.
One assignment per class meeting, 26 assignments over 13 weeks:
1. Intro/Overview Yeazell 1-38 (up to "F"; skip sections "B" at 5-14 and "D" at 28-32)
16. Summary Judgment Yeazell 578-593; watch the video [only to about 6:15] and read Scott v. Harris [be prepared to identify precisely which material fact was genuinely disputed; hint: it's not the reasonableness or excessiveness of officer Scott's conduct]; skim Hunter 147-67; FRCP 56; optional: download and skimthis article
* The JMLS attendance policy requires that students miss no more than 25% of the regularly scheduled classes (excluding make-up classes). Students are also allowed 2 additional absences for religious observance. A student who exceeds the maximum number of permissible absences cannot sit for the final exam and will receive a final grade of “WF” in the course. For a list and description of other law school policies, use this link: www.jmls.edu/policy . The page is still under construction, but it provides all kinds of useful information.