Introduction to the Adversary System

Introduction to the Adversary System

FRCP—governing in federal district courts only, not appellate
In Re BGC: example of the adversary system
Lawyers as active advocates for their clients
Judges have a more passive role
Two partisan lawyers are more likely to uncover more facts
Your case is only as good as the lawyer representing you
Adversary system only works if your client actually suffers the consequences of having a bad lawyer

Pleading

PLEADING

Validity of the Claim—Rule 8, 12b6 [ACCESS NOW]

Allocation (of the burden)—Rule 8, 9, 12 [GOMEZ]

Why is good faith an affirmative defense allocated to the defendant?

1)Fairness, access to evidence

2)History

3)Statutory silence, especially here in the case of 42 USC 1983

~purpose of the statute

~good faith is an affirmative defense to a complaint under 1983

Specificity, Consistency—Rule 8, 9 [McCormick]

Answers—Rule 8b, 8d [Fuentes]

Amendments—Rule 15 [Fuentes]

Sanctions—Rule 11 [Zuk]

Common law pleading (writ system)
Each different form of writ began to have its own special language and procedure, its own remedies
Easy to lose on a technicality, i.e. choosing the wrong writ
Purpose: narrow case down to a single issue
Code pleading (Field Code 1848)
Also known as Fact Pleading.
Sample procedure for all causes of action
Remains in California and New York
Notice pleading (FRCP 1938): Notice pleading requires very little of the pleader.
Difference from code pleading is laid out in the first three rules:
Rule 1: one set of rules for all civil suits; want just, speedy, and inexpensive actions
Rule 2: only one form of action, a CIVIL ACTION
Rule 3: action is started by filing a complaint
Purpose of pleading—to provide notice to the other party of the action and the nature of the contentions to facilitate informed preparation for discovery, settlement, or disposition
VALIDITY OF CLAIM: Access Now v. Southwest Airlines
The Court granted Southwest’s motion to dismiss. Southwest had moved to dismiss the complaint on the grounds that Southwest.com is not a place of public accommodation and therefore does not fall within the scope of Title III of the ADA. No nexus here, no relationship to a physical establishment.
FRCP 8(a)—specifies the required components of a pleading in federal court.
The complaint set out a legal assertion that allowed the defendant to move for 12b6 dismissal: Motion to dismiss for failure to state a cause of action upon which relief can be granted. This is appropriate when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. You have to look at the plaintiff’s allegations in the light most favorable to them to determine whether the complaint fails to state a claim of relief.
After a motion to dismiss is filed, the plaintiff is routinely given leave to amend.
Plaintiff here amended to say there was a nexus between the website and Southwest Arlines’s travel service.
The purpose of this complaint was to establish whether or not a website was a place of public accommodation.
There is the incentive for the complaint to be short and vague. With such a pleading, it would be difficult to grant the 12b6 motion.
MOTIONS to dispose of a case based on the merits, not procedural reasons:
12b6—failure to state a claim for which relief can be granted (general demurrer in state courts) You want to survive the 12b6 motion so that you can get to discovery. Why might a 12b6 be okay? You always have an opportunity to amend your complaint, and this is a CHEAP way to get to appeals court. 12b6 means you do not have to go through trial.
56—Summary judgment
50a—directed verdict (judgment as a matter of law)
50b—jnov (judgment as a matter of law) “renewed”
59—new trial
Three required elements of a complaint:
A short and plain statement of the grounds of the court’s jurisdiction
A short and plain statement of the claim showing that the pleader is entitled to relief
A demand for judgment for the relief the pleader seeks

ALLOCATION—

ALLOCATION ISSUE

PLAINTIFF or DEFENDANT

Element of Claim or Affirmative Defense

GOMEZ v. Toledo (1980)

Elements of a 1983 cause of action:

-Plaintiff must allege that someone deprived him of a federal right

-Plaintiff must allege that the person who deprived him of a right acted under color of state or territorial law

EVIDENTIARY STANDARDS:

Preponderance of the evidence: almost all civil cases

Beyond a reasonable doubt: criminal cases

Clear and convincing evidence: used for things we want to be especially hard to prove

AFFIRMATIVE DEFENSES are allocated to the DEFENDANT to plead and prove

ELEMENTS of a CAUSE OF ACTION are allocated to the Plaintiff to plead and prove

ISSUE—whether or not defendant acted in bad faith, the Court holds that acting in GOOD FAITH should be an affirmative defense because the DEFENDANT is in a better position to know their own state of mind

GOMEZ: The plaintiff is not required to allege in the complaint that the defendant acted in bad faith

“Color of state” 42 USC 1983, Bottom of page 587

Under this section, however, the official may be entitled to qualified immunity.

In the GOMEZ case, the respondent/superintendent was entitled to qualified immunity for acts done in good faith. (Thus, the district court had erroneously concluded that the plaintiff was required to allege bad faith in his pleadings).

~~~Looking at Section 1983, there is nothing in the language or the legislative history of section 1983 that says such a plaintiff must allege bad faith in order to state a claim of relief. Only TWO allegations are required!

(1)The plaintiff must allege that some person has deprived him of a federal right

(2)He must allege that the person who has deprived him of his right acted under color of state or territorial law (e.g. police force)

Since QUALIFIED IMMUNITY is a defense, the burden of pleading good faith/bad faith rests with the defendant. The plaintiff is not required to anticipate the defense.

FRCP 8c lists 19 AFFIRMATIVE DEFENSES that must be pleaded by a defendant/party responding to a preceding pleading.

Burden of Pleading—determines who must allege that element in the pleading

Burden of Production—the burden of placing sufficient evidence in the record supporting all essential elements of her own claim to allow the finder of fact to find in her favor

Burden of Persuasion—describes the standard that the finder of fact is required to apply in determining whether it believes that a factual claim is true—preponderance of the evidence/clear and convincing/beyond a reasonable doubt

Burdens of production and persuasion are subsets of the burden of proof

RULE = he that pleads must prove, which means that the party with the burden of pleading also has the burdens of production and persuasion

Once defendant asserts the affirmative defense of qualified immunity, then the burden is on the plaintiff to prove the defendant acted unreasonably.

More specific pleading in cases of fraud or mistake

SPECIFICITY and CONSISTENCY

McCormick v. Kopmann (1959)

Page 601

--There is almost no federal rule on how specific pleadings must be

--Rule 9: Fraud and mistake must be pleaded with particularity but malice and intent can be stated generally

--CONSISTENCY:

INCONSISTENCY in pleadings is permitted when you are unsure which version of the facts is true. Trying to prove one claim to the jury is not allowed as evidence tending to disprove another claim. As long as there is a reasonable basis for pleading each alternative, it is okay to plead alternative allegations.

This case holds that PLAINTIFF CAN PLEAD INCONSISTENT COUNTS IN THE ALTERNATIVE!

FACTS: McCormick was killed when a truck being operated by defendant Kopmann collided with McCormick’s car. This was after McCormick was fed copious amounts of alcohol by the Huls. Action brought by McCormick’s widow.

Count I: Kopmann (truck driver) is sued.

Count IV: Huls are sued.

Kopmann claimed that the two allegations are fatally repugnant, because McCormick could not be free from contributory negligence as alleged in count I if his intoxication caused the accident as alleged in Count IV.

--Count IV is NOT a binding judicial admission! Says the court.

FRCP 8(e)2 (PAGE 42): A party may set forth two or more statements of a claim or defense alternatively or hypothetically. This is regardless of consistency.

Kopmann is correct in asserting that the complaint contains inconsistent allegations. Counts I and IV are mutually exclusive and the plaintiff may not recover under both counts. It does not follow, however, that these counts cannot be pleaded together. If a plaintiff is in doubt as to the person from whom he is entitled redress, he may join two or more defendants and state his claim against them in the alternative. Further, here the injured party is deceased and so there is a real issue as to the true facts.

------even if plaintiff had made out a prima facie case of McCormick’s intoxication for purposes of Count IV under the Dram Shop Act, she made no showing of a causal connection between the intoxication and the accident.

This is a change. The early approach did require consistency.

Now, allegations in a complaint are not held to be admissions!

EIGHT (8) RESPONSES TO A COMPLAINT

Four ways to respond to factual allegations:

DENY
ADMIT
“I don’t know” = DENY
FAILURE TO RESPOND TO FACTUAL ALLEGATIONS = ADMIT
Can file a motion, e.g. 12b6
Can assert affirmative defenses
Can file counterclaim
Do Nothing

What happens AFTER a complaint is filed?

~Complaint may not be served properly (RULE 4  Dismissed)

~Complaint is served but not answered (Rule 55  Default judgment)

~Complaint is answered and answer is filed (Proceed with litigation)

~Motion under Rule 12 is filed! (e.g. if 12b6 is granted, Plaintiff can APPEAL, if 12b6 is denied, then you can answer within 10 days)

ANSWERS!

When you deny something in an answer, the plaintiff then had to prove it. If you admit it, the plaintiff CANNOT bring evidence on the issue. The issue is just established as true.

A DENIAL has two consequences:

1) It imposes on the plaintiff the burden of proving the allegation denied

2) It ordinarily permits the defendant to introduce evidence that would tend to disprove the allegation

Rule 8(b): When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder.

Rule 8©: LIST of affirmative defenses (that is non-exhaustive)

Fuentes v. Tucker, Page 90-91 in the additional materials

Year: 1947

The day of trial, defendant admitted liability for deaths of two kids by car crash. Jury awarded plaintiffs $7,500 each and defendant appealed. Appellant claimed: trial court erred in permitting the plaintiffs to present evidence of facts outside the issues framed by the pleadings.

After defendant admitted guilt, plaintiffs were nevertheless permitted to prove the circumstances of the accident (D was drunk and kids were thrown 80 feet from car). D says this evidence was admitted in error because it was not relevant to the amount of damages.

If an issue is removed from a case by admission in an answer, it is error to include the evidence if it is relevant solely to that issue. In an action for personal injuries, where liability is admitted and the only issue to be tried is the amount of damages, the force of the impact and the surrounding circumstances may be relevant to indicate the extent of the plaintiff’s injuries. BUT SINCE this was a wrongful death action, the manner in which the accident occurred, the force of the impact, or defendant’s intoxication could have no bearing on the elements of the damages.

The evidence admitted was NOT MATERIAL to any issue before the jury and its admission was ERROR!

EVEN STILL, this ruling does not alter the outcome in this case!

Court said that even though there was error, it was not PREJUDICIALLY ERRONEOUS!

AMENDMENTS

-Generally, amendments are freely allowed

-Abuse of discretion not to allow at least one amendment

-Rule 15a: When can a party amend a pleading?

~Before responsive pleading is filed (or if no response is required, then within 20 days of serving the original pleading)

~By leave of court—granted freely when justice requires

~By written consent of the adverse party

Amendment to the pleadings is allowed liberally to allow pleaders to correct mistakes or to reflect facts revealed throughout discovery.

-Rule 15(b)

***If issues not raised in the pleadings are tried by express or implied consent of the parties, this rule directs that they be treated as if they had been raised in the pleadings and that amendment of the pleadings be allowed to conform to the evidence presented

***If a party objects to the introduction of new evidence, this rule directs the court to allow amendments of the pleadings freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits

Rule 16(e) provides that the pretrial order shall control the subsequent course of the action unless modified by subsequent order.

SANCTIONS

Zuk case, page 611

Rule 11—No longer permits sanctioning in cases where there is no bad faith on the part of the lawyer or the client

-Requires signatures on certain pleadings filed, certifies that the pleadings are true to the best of your knowledge, process of imposing and limited sanctions

-Separate sections for court imposed sanctions and when Defendant motions for sanctions

-Claim must rest on existing law or on a non-frivolous argument for some extension or modification of existing law

RULE 11, FRCP page 44. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.

11.a. Requirement of a signature

11.b. By presenting to the court a pleading, attorney is certifying that to the best of the person’s knowledge, information, and belief—

1) It is not being presented for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation

2) The claims, defenses, and other legal contentions therein are warranted by EXISTING law or by a NONFRIVOLOUS argument for the extension, modification, or reversal of existing law or establishment of a new law.

11.c. SANCTIONS. The party prevailing on this motion may be awarded the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Sanctions are to be limited to what is sufficient to deter repetition of such conduct.

11.d. DISCOVERY is not covered by Rule 11

Rule 11—no one really ever files an improper purpose argument

Zuk v. EPPI (Eastern Pennsylvania Psychiatric Institute) 1996

--This case involves Rule 11 sanctions and sanctions permitted under 28 USC 1927

The initial case was dismissed by Rule 12b6 motion, Dr. Zuk settled his liability but his attorney LIPMAN appealed.

EPPI had films of Dr. Zuk’s sessions, and later Zuk wrote a book on the same topic, which he had copyrighted. EPPI filed for sanctions on the ground that THE APPELLANT HAD FAILED TO CONDUCT AN INQUIRY INTO THE FACTS REASONABLE UNDER THE CIRCUMSTANCES and INTO THE LAW.

Reasonable inquiry under the circumstances  it is usually enough to ask the client.

(Side issue: Copyright Act 17 USC 505: The court properly awarded attorney’s fees, but since this is a COST, liability is attached only to Zuk and not to Lipman. Attorney Lipman is not liable under the Copyright Act to pay such fees).

The bad behavior here by Lipman was failure to make a reasonable inquiry into the facts and law before filing a lawsuit. No bad faith involved, which is required for awarding $ under 28 USC 1927.

Substantive holding: The COPYRIGHT of the book afforded no protection to the films.

There was however NO ERROR in the district court’s decision to impose sanctions pursuant to FRCP 11.

Plaintiff’s legal arguments were not warranted by existing copyright or property law. Copyrights do not apply to any such preexisting material.

The 1993 Revision of Rule 11 makes it clear that the rule’s main purpose is to deter, not to compensate. Monetary penalty is to be paid to the court.

------A litigant CAN escape sanctions by withdrawing an offending pleading or representation within 21 days of being served with a motion by an opposing party.

CD notes on PLEADING

--In modern procedure, pleading is not that big of a deal anymore.

IN THE PAST: Pleadings give notice to defendant, the pleadings involve the revelation of the facts (fact pleading), issue formulation! Issues were identified and people went to trial on the issues.

MODERN TIMES—Now the only purpose is to give notice! There are other ways to get to fact and issue revelation. No precise issue statement necessary!

FRCP 8A2—Short and plain statement indicating the pleader is entitled to relief. No facts necessary! Just a legally cognizable claim for relief. This doesn’t even specify you need to state a claim for relief.

The federal courts are to construe the pleadings liberally. Only reject if 12b6, failure to state a claim upon which relief may be granted. This motion must be denied if the pleading might be read to indicate that the pleader is entitled to relief. Very few motions under 12b6 are granted, but federal courts are getting tougher about that. There are disfavored actions.

(1) Standard of particularity of pleading

(2) The special pleading rules FRCP #9

~9B: the circumstances of fraud must be pleaded with particularity. Fraud has historically been a disfavored action. It is very hard to prove/disprove the elements of fraud. A plaintiff must plead FACTS! Where are the documents, who committed the fraud, what did he do? High pleading burden.

~Defamation actions too, in many states.

~Pleading of conditions precedent, in a contract breach case. Modern contracts (insurance, contracts, etc.) are complex and may have hundreds of conditions. Burden reversed here—all plaintiff has to do is say that all conditions precedent have been satisfied.

(3) Amendment of pleadings, doctrine of relation back

FRCP 15: Sets up time frames and establishes standards for amendments. At the front end of the case, you can amend freely before any responsive pleading is filed.