American Tort Law Carolyn McAllaster Clinical Professor of Law Duke University School of Law.

American Tort Law

Carolyn McAllaster

Clinical Professor of LawDuke University School of Law

Class One

Federal Courts and Civil Procedure

U.S. Government Organization

Hierarchy of binding precedents

U.S. Constitution Federal LawsState LawsCommon LawLocal Ordinances

Horizontal Federalism

Dual system of state and federal jurisdiction

Federal SystemU.S. District Courts (trial courts)US Courts of AppealsUS Supreme Court

50 state court systems

United States Courts of Appeals

Personal Jurisdiction

Over propertyWhere property is located (in rem) If a debt dispute, where property that is

security for debt is located (quasi in rem)

Over a party If party is located in jurisdiction, orHas certain minimum contacts with the

forum (International Shoe Co. v. Washington, 326 U.S. 310 (1945)

Federal Court Jurisdiction

Federal Question Jurisdiction

Cases “arising under the Constitution, the laws of the U.S., and treaties

Diversity Jurisdiction

Citizens of different statesAmount in controversy is at least $75,000

Federal Rules of Civil Procedure

Govern all civil lawsuits in federal courts (all court trials except criminal and admiralty trials.)

Essentially the same in all the Federal Courts;

State Court rules are modeled after the federal rules;

Pre-trial ProcedureStarting the Lawsuit

Party meets with his/her attorney

After investigation, attorney files Complaint Short & plain statement of jurisdiction Short & plain statement of the facts Demand for relief

Clerk issues Summons (order to respond to complaint or lose the lawsuit by default)

Pre-trial ProcedureDefendant’s Response

Defendant has 20 days to respond to Complaint after service;

Response can be either:

Motion to DismissAnswer

Motions to Dismiss

Grounds for Motion to DismissLack of subject matter jurisdictionLack of personal jurisdiction Improper venue Insufficiency of process Insufficiency of service of processFailure to state a legal claimFailure to include a necessary party.

Defendant’s Answer

Contents of Answer

Admit, deny or state lack of knowledge of allegations in the Complaint;

Raise affirmative defenses to lawsuit;Counter-claims against plaintiffCross-claims against 3rd party

Discovery

Process through which the parties exchange information on “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” (FRCP 26(b))

Privileged information is excluded: communications between certain categories of professionals.

Discovery, continued

Lawyers gather discovery information, not the judge;

Idea is full disclosure of information each side has to promote:Truth-findingFairnessEarlier settlementefficiency

Discovery

Required initial disclosures:

Name and contact information about any person likely to know about the claim or defenses;

Copy or description of all documents to be used in case;

Materials related to how damages are calculated

Forms of Discovery:Depositions

Deposition: sworn testimony of a party or witness

Court reporter is present who “takes down” the testimony.

Lawyers ask questionsTranscript can be used at trial

To impeach witnessesAs testimony of unavailable witnesses

Forms of DiscoveryInterrogatories

Interrogatories: written questions sent to a party to be answered in writing under oath;

Lawyer usually drafts responses within 30 day time limit

Limit: 25 questions including subparts

Forms of DiscoveryRequest to Produce

Request for Production of Documents:Used to request inspection and copies of

documents or for inspection of land;Must specify a reasonable time, place, and

manner of making the inspection and copies;

Response due within 30 days

Forms of Discovery

Requests for Admission/ Order for Physical or Mental Examination

Requests for Admission:Written requests to opposing party to admit facts

that are undisputed.

Can deny admission, but failure to respond results in admission

Order for Physical or Mental ExaminationUsed for party only when physical or mental

health is an issue in the lawsuit.

Summary Judgment

Judge decides case without full trial when there is “no genuine issue as to any material fact and…the moving party is entitled to judgment as a matter of law.”

The Trial

Jury selection (voir dire) Plaintiff’s opening statement Plaintiff’s evidence

Direct and cross examination of witnesses

Defendant’s motion for directed verdict Defendant’s opening statement Defendant’s evidence Closing Arguments Verdict (based on instruction about the law from the

judge.)

Post-trial

Post-trial MotionsTo set aside verdictFor a new trial

Appeal of verdict to higher court

Appellate Court affirms, reverses, or reverses and remands