Professor Howard Wasserman Spring 2012

Civil Procedure

Professor Howard Wasserman Spring 2012

Office: RDB 2065 RDB 2005

Phone: 348-7482 Mon/Wed/Fri, 10:30-11:40 a.m.

e-mail:

Office Hours: Tues/Thurs, 10-11:45 a.m.
Thurs, 3-4 p.m., 7-8:30 p.m.
Whenever I am in my office

Post questions about class discussions, course materials, etc., to the Blog.

Course Outline:

This course is designed to provide students with an introduction to the judicial process and to the procedure that governs civil litigation, using federal courts and the Federal Rules of Civil Procedure as an illustration. The course will combine doctrinal and theoretical components, so students consider not only how the system functions, but why it functions in that manner and whether some other procedural system would be preferable or more effective.

The course focuses on pre-trial and post-trial procedures, including pleading, discovery, summary judgment, judicial case management, and motion practice. The course also will introduce students to the concepts of personal and subject-matter jurisdiction, the question of what law controls in litigation, and the effects of final judgment.

We also will compare the American common law “adversarial system” of adjudication with the Continental/Civil Law “inquisitorial system and we will consider how American practices as to pleading, discovery, and jurisdiction fit in the increasingly international context of litigation. Relatedly, we will see how the United States system of civil procedure attempts to work and avoid conflict with the procedural systems in other nations.

Required Materials:

1) Linda S. Mullenix, Leading Cases In Civil Procedure (West 2010)

2) Kevin M. Clermont, Principles Of Civil Procedure (Thomson West 3d ed. 2012)

3) Civil Procedure Stories (Kevin M. Clermont, ed.) (2d ed. 2008)

4) Federal Rules Of Civil Procedure (2011 ed.) (Compiled By Kevin M. Clermont)

5) Civil Procedure Blog: http://fiucivpro.blogspot.com

Blog

A course blog has been setup, titled Civil Procedure Blog; the URL is http://fiucivpro.blogspot.com.

Everyone must register as an author and a reader. To register as an author, please send an e-mail to me (). In the subject line, type “Civ Pro Blog Registration;” in the body of the e-mail, please type your name and your e-mail address. You then will receive an e-mail “Invitation” inviting you to join as an author on the blog. Follow the steps in the invitation e-mail to register as an author; please register using your full name (first and last) and no handles or usernames. When you register, you also will find out how to draft posts, how to link to sites, how to post files (audio, video, documents), etc.

The blog serves several purposes. First is to make available the Syllabus and additional reading assignments, to be downloaded and read. I strongly recommend that you print out copies of these documents and bring them to class. Second, all classes will be audio-recorded and the audio file will be posted to the blog. Those of you who are worried about being able to catch everything said in class can go back and listen to the class again and fill-in any gaps. Third, this is how I will communicate with you about assignments, materials, additional questions, and what you should be thinking about and preparing for the next class. I also will post ideas and thoughts clarifying and expanding on class discussions and the course materials that we just covered, including answering in-class questions that we were not able to cover fully in class. You should get in the habit of at least checking the blog at least a couple times during the day.

Fourth, and most importantly, the blog is a forum for an ongoing conversation about the law of civil procedure. The blog is intended to carry class discussions and conversations on the material outside the classroom, to enhance discussions beyond the limits of a 75-minute class session. This forum enables us to examine and discuss how these issues arise in real-world stories, cases, occurrences, events, as well as in the books you read and the TV shows and movies you watch. This also requires you to look beyond the course materials and to keep up with legal, social, cultural, and political events and link what happens to your own work.

This discussion will take the form of original posts by class members and me. I frequently will pose questions to be answered and discussed by you in writing rather than in class. Do not use the Comments section of a post; begin a new post with a new title. Topics for blog posts include thoughts, ideas, and commentary on issues and materials discussed in class; questions about the material (I strongly encourage using this forum to discuss questions and concerns that arise in class); and discussion and analysis of news stories, books, movies, and television shows (how did “The Good Wife” deal with discovery disputes last night?), current events, and anything else relating to the law of civil procedure and the substance of this class.

There are no guidelines about length, content, or style, other than to insist that it be relevant to this class, that it be respectful, and that it be somewhat thought-out and well-written. Humor is good. Also, if the post is substantive, it ordinarily should contain some original thought or commentary. In other words, please do not simply cut-and-paste long portions of a case or article into the post; provide a link or cite to the story/article/etc., then give a very brief synopsis or summary, along with your own thoughts on it.

You also must put your full name on the post. You may post as much or as little as you wish; activity here is included in your participation grade. The site includes a "Blogroll" linking to a number of topical blogs and web sites, most of which highlight and comment on new cases, stories, issues, and legal developments on Evidence. You should get in the habit of checking these information-aggregating blogs during the course of a day; they are going to be important resources in your practice.

Final Grade:

Your final grade will be based on four components.

Essays: You will do two short writing projects, each worth 15 % of the final grade, for a total of 30 %. The first will be due sometime mid-semester, covering pleadings. The second essay will be assigned at the end of the semester and due at the beginning of the in-class Final. It will cover one of several topics from the latter part of the class, to be randomly assigned. More details and specific due dates later in the semester.

Hypos and questions will be posted on the FIU Civil Procedure Blog. Essays must be submitted using a blind Exam ID number, which you will get from the Registrar during the semester.

Final Examination: There will be an in-class end-of-semester final examination, worth 55 % of the final grade. The exam will be some combination of multiple-choice and/or short-answer. It will be partially closed book—you will have a clean copy of the Federal Rules and relevant statutes, but you will not be allowed to bring anything into the exam with you.

Class Participation:

Class participation is a mandatory aspect of this class and will account for 15 % of your final grade. The participation grade includes participation in both in-class discussions and on-line conversations on the FIU Civil Procedure Blog, with overwhelmingly greater emphasis on in-class activity than blog activity.

Although I generally do not cold-call or random-call, I expect the materials in the course to generate discussion and to trigger comments and questions that can be put to the class for consideration. Everyone is strongly encouraged to participate with questions, comments, thoughts, ideas, and views. Questions count as a form of participation, because they often help to drive the overall conversation forward. But when you ask a question, the first step might be for me to try to work through the answer with the questioner. Note that there is one situation in which I will cold-call: If a student makes a point or raises an issue, I will return to that student in the future when that issue or that point arises again in later classes.

In evaluating class participation, I will consider both the quality and quantity of your answers and comments and your participating in the broader conversation. In grading written comments on the Blog, I will consider the frequency with which you post, as well as the quality of your comments and how well they further understanding of the course materials and our discussions in and out of class.

Because much of the discussion focuses on the various rules, you should never enter this classroom without the Rules pamphlet, which should be open and in front of you at all times. Many of the answers to the issues we will discuss in class are contained in the rules and statutes themselves.

College of Law Academic Policies and Regulations

This class is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies and Regulations, reprinted in the College of Law Student Handbook. Students are expected to be familiar with and to conduct themselves in line with those policies and regulations.

Technology and Class Conduct

Laptops are not permitted in the classroom.

Phones must be turned off when you come into the classroom. Blackberries, iPhones, Treos, and other similar devices may not be used during class.

Please come to class on time. Please do not get up and leave during class unless it is necessary to do so.

Class Assignments

Some thoughts on Civil Procedure:

The focus of this class is a code—the Federal Rules of Civil Procedure, along with provisions of the United States Code governing jurisdiction and procedure in the federal courts. The goal of the course is to understand what individual rules require, how rules relate to one another and to the body as a whole, and how rules apply to particular litigation situations.

Working through the issues in this course requires you to see how many different rules and principles fit together. You must be ready, in class, to discuss the plain textual language of a rule, as well as its underlying history, policy, and purpose. You also must be ready to jump around to different provisions to find applicable rules. Your rules pamphlet should become tabbed, dog-eared, and well-marked to allow you to locate key provisions easily and quickly.

You must have your rules pamphlet with you and open on your desk for every class.

This course builds on itself. It is important that you grasp the rules, statutes, and material that we discuss early in the semester in order to grasp the material that we discuss later in the semester. Do not simply forget or disregard what we do in the beginning of the semester, because that information will come up again and again throughout the class. You cannot understand much of what we do later in the course unless you understand and recall what we did earlier in the course.

Preparing for Class:

A few words about preparing for this class. Your starting point on any assignment always should be the applicable language and history of the applicable rule or statutory provision listed in the assignment; you then should proceed to the explication, elaboration, and application of the rules in a given case. Whenever a case discusses a rule or statute, be sure to cross-reference the language and history of that rule or statute, and understand how the rule is being read, interpreted, and applied by the court. In reading cases, pay attention to the procedural posture of the case, as that (rather than substantive outcomes) will be our primary focus.

Class discussions will focus on how all the materials—the relevant rule or statute, the case, and the commentary—fit together. Do not simply read and brief or take notes on individual rules, statutes, cases, and articles. Rather, after reading each individual piece, spend some time thinking about how the readings relate to one another—what are the common themes and principles, how do the cases complement or conflict with one another (and can any conflicts be reconciled?), how has a case interpreted and applied the plain language and history of a rule or statute? Generally, our discussions will not proceed case-by-case, but instead will focus on overarching themes. Preparing for class means finding the connecting themes in the material.

All rules, statutes, and constitutional provisions are found in the Federal Rules of Civil Procedure pamphlet, unless otherwise indicated. Several relevant statutes were amended by the Jurisdiction and Venue Clarification Act of 2011(“JVCA”), which was signed on December 7, 2011 and applies to all claims filed on or after January 6, 2012. The amended provisions are in a document to be downloaded from the Blog, titled 28 U.S.C. provisions as amended by Jurisdiction and Venue Clarification Act.

You must read and familiarize yourself with the text of all assigned rules, as well as the Advisory Committee Notes, which provide necessary background and detail about meaning and application. When a rule is assigned, you should read the text of the rule first, then read the Advisory Committee Notes, then go back and read the rule again. “Reading” a rule means understanding the rule; by the time you come to class, you should be able to paraphrase the rule in plain English and discuss and explain what it says and means and how it will apply. Again, you must have your rules pamphlet with you for every class and it should be tabbed and marked-up.

We will use several sample complaints throughout the semester to demonstrate what various documents look like. You should download, print, and review them and be familiar with the basics of each, as we will be referring back to their facts and posture throughout the semester. You must print all four and have them with you in class. Bring them with you to class when the syllabus indicates. These samples will illustrate how the rules operate and what the rules require; they also will provide good factual hypotheticals that we will come back to throughout the semester.