For Civil Procedure Exam Essays:
1. Define the Issue- is this case a personal jurisdiction issue, a subject-matter jurisdiction issue, a service of process issue, a venue issue, a notice issue, a pleadings issue, an issue with discovery, an issue of joinder, etc.
2. State the Rule: The rule is... the points that must be satisfied are... I will address these points... (use policy, theory, and case law)
3. Apply your rule: Use the rule that you cited and apply the facts specifically to what the rule states.
4. Conclude: state the likely outcome according to the rule and facts analysis. (ie. because of the reasons stated, there is/ is no ...)
Make sure to always use your Rules. Check with your professor to see if you are allowed to bring the rules into the exam. If not... thats okay! You must memorize these rules for the Bar Exam. These rules will be important for other classes and for the practice of law.
Check out the resources in the library for additional help with Civil Procedure. There are a wide variety of study aids, mbe practice questions, and books regarding civil procedure if you are just interested in getting more information about a topic. If you cannot find them yourself, ask the reference desk or a librarian!
Civil Procedure is often regarded as being the hardest 1L class. This is partly because of how important the rules are to the other classes and because there are strict guidelines that have been developed by both the FRCP and case law.
Just remember that while this is important information, it takes time to learn. Tackle each section individually because the concepts start to build on each other. Learn them in the order that I have created this guide. Use the tabs at the top to find the different sections of material that you will have covered in class or that you should cover for BAR prep.
DISCLAIMER: This libguide was created by a student based on the student's understanding of civil procedure. It cannot and should not be construed as legal advice, nor should it be any student's only point of reference in examination or Bar Prep. This was merely created as a tool for studying the subject and therefore has its limits. This is only the first half of the course. For the second half, see libguide Civil Procedure II.
Federal rules of civil procedure were first created in 1938 and have been amended 40 times since. They were retuned in 2009.
Various courts additionally create their own LOCAL RULES as long as they are not inconsistent with the National rules and individual judges establish "chamber rules"
Commencement Federal Rule 3: plaintiff begins lawsuit by filing complaint with the court, timing of commencement is driven by the statute of limitations; how long does that jurisdiction give us to file a lawsuit
Summons Federal Rule 4: plaintiff notifies defendant by serving them complaint and the summons, have 120 days to serve them
Defenses and Objections Federal Rule 12: how defendant responds to the complaint and the summons. Either file a motion or file an answer: they have 20, 60, and 90 days under 12(a)(1-3) to file.
Motion: request for a court order
Answer: pleading, paragraph by paragraph response to complaint
Civil Procedure:
When studying civil procedure, it is very important to look at both relevant case law and the Federal Rules of Civil Procedure. Tip: You can get a FRCP Pocket Guide from Lexis Advance in the library's printer room on the first floor of the library.
Why do we study civil procedure, particularly as a 1L?
Civil Procedure addresses civil law. Civil law regulates private interests and provides compensation for a loss. Procedural rules are relevant no matter what type of law an attorney practices. Lastly, the subject is tested twice on the BAR exam, both MBE and essay.
Remedies available in civil law are monetary relief and injunctive relief.
The standard of proof in civil cases is preponderance of evidence.
JURISDICTION is concerned with the power of a court to hear and rule on a case. There are four parts:
Personal Jurisdiction- which state can exercise authority over these litigants and bind them by a ruling?
Subject Matter-which court within that state has the right to act?
Exclusive or Concurrent-are there multiple courts within state from which to choose?
Original or Appellate-trial level-hears the case and weighs the evidence while the appellate court reviews for legal error.
Justiciability: the ability for a dispute to make it into a courtroom. In order for a case to be heard in court:
1. There must be a "case or controversy", not hypothetical, abstract or advisory but rather concrete and definite. The purpose must not be to set policy.
2. Plantiff must have "standing", have an actual stake, or immediately will suffer an actual injury traceable to conduct by the defendant and capable of being redressed by the court.
3. The dispute must be "ripe". It must rest upon current events and not speculative future ones.
4. The dispute must not be "moot", meaning that dispute is still alive, ensuing events have not rendered dispute merely academic.
See FRCP Rule 11: Regarding consultation with potential clients, there should be no solicitation of clients, meaning that there should be no in person, live telephone contact to solicit legal work. The exceptions are if you have existing client relationship.
When creating the relationship, two things must be done to remain ethical:
1. discuss the scope of the engagement-what you’ve been hired to do; and
2. discuss fee arrangements.
FRCP Rule 11(b) requires an attorney provide competent representation in any act of advocaty.
The act of signing, filing, submitting or advocating any paper in court is certification by the attorney.
Rule 11 applies anytime we are advocating:
1) factual support;
2) legal support; or
3) pressing claim for a legitimate purpose.
1. convenience goal: protecting defendant from unfair inconvenience
2. territorial goal: ensuring that the courts honor state sovereignty
The concept of Due Process comes from Constitution, meaning that there is no higher law.