Civil Procedure
1. Subject Matter Jx.-Which court?
A. A federal court can hear a case where there is a federal question involved or there is
diversity of citizenship.
1. State matters
a. Divorce, alimony child custody
b. Federal courts will not hear
B. SMJ can never be waived and can be raised at anytime.
C. Diversity of Citizenship
1. Complete diversity
a. Citizenship of all Ps must differ from all Ds.
b. Person: where domiciled
c. Buss.-nerve center (decisions are made) or muscle center (activities performed)
i.
Look at the principal place of business
ii. Place of incorporation
2. Amount in controversy
a. Must exceed the sum or value of $75,000.00 exclusive of interests and costs
b. Must be pleaded in good faith
c. To a legal certainty
d. A single P may aggregate all claims against a single D.
e. Two or more Ps, even in a class action suit, cannot aggregate their claims against
multiple Ds unless the Ds are jointly liable to P.
i.
Several Ps can aggregate claims when they are seeking to enforce a single
title or right to which they have a common or undivided interest (i.e. quiet
title action)
D. Quasi-In Rem Jurisdiction
1. Is a legal term referring to a legal action based on property rights of a person absent
from the jx.
a. It has become non-existent in the U.S. legal system
b. Commonly used when Jx. over a D is unobtainable due to his or her absence
from the state
i.
Any judgment will affect only the property seized as In Personam Jx. is
unavailable.
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2. Personal Jurisdiction-Which state?
A. The issue is whether State X has personal Jx. over D. Personal Jx. exists where the forum
has power over a particular D.
B. Traditional Bases for Personal Jx.
1. Traditionally, personal jx. existed over a party when the party was served in that
state, was domiciled in the state or consented to the exercise of personal jx. over
him/her.
2. The supreme Court has upheld this type of Jx. allowing a transient D to be served
with process for a cause of action unrelated to his brief presence in the state
a. Unless service is obtained by fraud or trick
C. Modern Basis or Due Process Standard
1. In the absence of these conditions, a federal court can exercise personal jx. over those
parties that have had sufficient min. contacts with the forum state that it does not
offend traditional notions of fair play or substantial justice to exercise jx. over them.
D. Long Arm Statute
1. State X’s long arm statute must purport to reach over non-residents so that jx. can be
exercised over them on any basis that is not unconstitutional.
a. Discuss facts here…..or that the facts are silent
b. The long arm statute provides that Jx. over non-residents may be exercised onany
basis not inconsistent with the U.S. Const. under this statute, Jx. is proper so long
as it is constitutional.
E. Minimum Contacts
1. Whether minimum contacts exist between the forum state and the D is a balancing
test between (SCR)
a. Relatedness between contact and claim
b. Convenience of the parties
c. State’s interest in protecting its citizens
These factors are to assess
“traditional notions of fair play
and substantial justice” For Bar,
Cts. use all 3 to determine fairness
d. Test: (SPFR)
i.
Systematic/continuous contact with the forum state (General Jx)
ii. Purposeful Availment (to the benefits of the forum state)
(a) Did the D place themselves there instead of being happenstance that they
ended up there?
(b) You can be sued in that state for the reason that you have contact in the
state and nothing else (Specific Jx)
(c) Do the facts indicate that the parties sought the benefits and protections
of that state?
(d) Where was the contract entered into, performed or negotiated?
(e) Can also be determined by placing a product in the stream of commece.
iii. Foreseeability
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(a) Did you reasonably anticipate that you might be sued in that state?
iv. Reasonableness of asserting Jx.-State X’s court’s assertion of Jx. is also
reasonable under the circumstances…..(discuss facts)
e. Test for reasonableness (SURF)
i.
Is not an unreasonable burden
ii. Foreign Jx.
iii. Residence of Witnesses
iv. State’s interest in protecting its citizens/choice of law
3. Supplemental Jurisdiction
A. If does not meet diversity or federal question try Supp. Jx.
B. Federal courts may be able to hear if P has set forth at least one claim that meets
Diversity or Federal Question
C. There is no need for diversity between third party D and either P or the third party P
because the third party claim invokes Supplemental Jx.
D. Because the third party claim does not involve the P, the P may not assert a claim against
the third party D unless there is an independent basis for Subject Matter Jx.
1. Provided that the claim arises out of the same T/O
2. Joinder is favored by federal courts and third party inclusion in the lawsuit would
serve judicial economy by avoiding a separate lawsuit.
E. Claim
1. Supplemental Jx. Applies to a state claim if the federal and state claim derive form a
common nucleus of operative facts and
2. Such that a P would ordinarily be expected to try them all in one judicial proceeding
F. Parties
1. In the absence of Subject Matter Jx., the federal court may allow the P to join
additional parties not originally named, provided that the original claims, & the
original Jx. Invoking the claim is not based on diversity.
G. Supplemental can be either Pendent or ancillary
1. Pendent: only if joined by P in FQ case - Against same D or different D
a. Since 1990, Pendant Jx. has become a doctrine of discretion and not of right.
i.
The judge can decide if he will allow
b. Must arise from the “common nucleus of operative facts”.
c. Same T/O as the underlying claim
d. Only if joined by P in Federal Question case.
e. Court has discretion not to hear if
i.
If Federal Q dismissed early in proceedings
ii. State law claim is complex
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iii. State law issues predominate
2. Ancillary-joined by anyone but P –(Joinder issues)
a. Claims arise out of the “common nucleus of operative facts”
b. Court has same discretion as above
4. Removal
1. Only D from state to federal court
2. Based on diversity or federal question
3. No later than 30 days from service of process or when can be removed
4. All D’s must agree to remove
5. Federal Q claim against 1 D can be removed , while court remands state law issues
6. If using diversity- no removal if any D is citizen of the forum state
7. If 2D’s, one drops the other can meet the complete diversity rule
a. Can’t be later than one year of filing
5. Erie Doctrine
1. In diversity cases, the federal court must apply state substantive law and federal
procedural rules
a. Elements of a claim or defense are substantive.
b. SOL is regarded as substantive law-state law applies
2. Apply federal
a. If federal law conflicts with state law
b. And “arguably procedural”
3. If noted law on point
a. Use state law if federal law is outcome determinative
b. Balance of (state/federal) interests
c. Avoid forum shopping
i.
Ignoring state law causes parties to flock to federal ct.
6. Venue
A. Which federal court or district?
B. In all diversity & FQ cases, P may lay venue in “any district where…..”
1. All D’s reside or
2. A substantial part of the claim arose.
C. If none of the above
1. Where all D’s are subject to Personal Jx.
2. Where all D’s reside
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a. In different districts of the same state, can lay venue in the district in which any
of them reside
i.
C.D. cal or E.D. call
7. Transfer of Venue
1. Where an original proper venue transfers to another district that would also be proper
(federal district court to another federal district court)
a. Convenience of parties
b. Convenience of witnesses
c. Interests of justice
2. If venue in original forum improper, may transfer in interests of justice or
3. Dismiss case
8. Forum Non Conveniens
1. If there is a far more convenient & appropriate court elsewhere, a court may dismiss
to let P sue D there
2. Can be used where transfer to other court is impossible because it is a different
judicial system
a. Foreign
3. Look at
a. Public Factors
i.
Law applied, community burdened, & fact finder
b. Private Factors
i.
where witnesses and evidence are
4. If P will recover less in other ct.
a. Dismissal is not improper
5. FNC almost never granted if P is resident of present forum
9. Service of Process
A. In addition to P.J., P must give D notice
1. Summons
2. Copy of complaint
3. Within 120 days of filing case or case dismissed without prejudice
4. Must be served by a non-party to party by someone 18 years of age
B. Personal Service
1. Anywhere in the forum state
C. Substituted Service
1. D’s ususal abode
2. Discretion who resides there of suitable age
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a. Butler is okay but not babysitter
3. Service on D’s agent
4. Waiver by Mail
a. In another state okay if long arm statute allows
b. If D in state to be a s witness or party in another case
i.
Immune from service of process
10. Pleading (Rule 11)
A. Attorney must certify to the best of his knowledge
B. After “reasonable inquiry”
C. Paper is not for improper use
D. Legal contentions are warranted by law
E. Factual contention or their denial have evidentiary support
F. Party Violating Rule 11 has 21 days to withdraw doctrine and fix problem.
G. Amending pleadings
1. P may amend once before D’s Answer
2. D may amend once within 20 days of his answer
3. Court may allow “grant leave to amend if justice so requires”
a. Unless causes delay or prejudice
4. If introduce evidence of another claim that other party does not object to
a. Move to amend complaint to conform to evidence of new claim
H. Relation back doctrine
1. Means that the amended pleading is treated as though it was filed when the original
was filed, so it can avoid a SOL problem.
a. Test 1
i.
Pleadings concern same conduct &
ii. Same T/O as original pleading
b. Test 2 (Used rarely)
i.
If amendment changes D after SOL runs, it relates back if:
ii. It concerns the same conduct, transaction or occurrence as original
iii. New party knew of action within 120 days of filing of original complaint
(a) Or receives notice of action within a reasonable time.
iv. The new party knew that “but for” a mistake, it would have been named
originally
11. Complaint
A. Complaint: Principal pleading by P
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1. Statement of subject matter Jx.
2. Short and plain statement of the claim
a. Showing that P is entitled to relief
3. Demand for judgment
4. Special Matters: must be pleaded with particularity or specificity
a. Fraud
b. Mistake or
c. Special damages
12. Response: (Rule 12)
A. Either by motion or by answer
1. If not D risks default
2. Both have to be in 20 days of the process
B. Form
1. Motion for a definite statement
a. If pleading to vague
2. D must bring issues of form before abatement or merits or is deemed waived
3. Motion to strike
a. Aimed at immaterial things
4. Matters of abatement
a. Lack of subject matter Jx.-never waivable
b. Lack of personal Jx.-is waivable
c. Improper Venue-waivable
d. Insufficiency of Process-waivable
e. Insufficient service of process-waivable
f.
Failure to join indespensible party-not waivable
C. Matters regarding merits
1. Failure to state a claim on which relief can be granted
2. Judgment on pleadings
3. Summary judgments
D. Answer (T,R, &W)
1. Timing
a. If D made Rule 12 motion and it is denied
i.
Must serve answer in 10 days after court rules on motion
b. If D waives service, has 60 days from P’s mailing of waiver.
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2. Response
a. Admit
b. Deny
i.
Failure to deny is deemed admission
(a) Except for damages
c. State that you lack sufficient information to admit or deny
3. Waive affirmative defenses
a. Must raise affirmative defenses or waive them
b. Ex. Statute of Limitations, Statute of Frauds, Res Judicata, Self-Defense
C’s are among present parties
I’s are joining someone new to the case
13. Counterclaims
A. Offensive claims against an opposing party
B. Compulsory Counterclaims
1. If a counterclaim arises out of the same T/O as of the P’s claim, it is a
compulsory counterclaim and must be pleaded or will be barred.
2. Can be joined by supplemental Jx. Without requiring an independent basis for subject
matter Jx.
3. Test
a. Arises out of the same T/O as P’s claim
b. Must be filed in the pending case or it is waived
C. Permissive Counterclaims
1. Do not arise out of the same T/O as P’s claim
2. Do not have to be asserted in pending case
a. Can sue in a separate action
3. If counterclaim procedurally okayassess if there is S.M.J. (diversity/FQ)
4. If not procedurally okaytry supplemental Jx.
a. Ancillary for compulsory
i.
Ancillary: by anybody but P and arises from the same T/O as underlying case
b. Not permissive counterclaims
14. Cross Claims
A. Rule 13(g) allows a co-party to claim against another party on his side if the claim is
related to the transaction or the property involved in the original action, and
supplemental jurisdiction applies.
B. Offensive claims against co-party
1. Must arise out of the same T/O as underlying claim
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2. Not compulsory
3. Need diversity, Fed Q, or Ancillary Jx.
a. Supplemental Jx. Applies
15. Joinder: Proper D’s & P’scompulsorypermissivewhere joiner is
impossiblesupplemental Jx.
A. Test:
1. Arises out of the same T/O &
2. Raises at least one common question of fact or law
B. Compulsory Joinder
1. A party is needed where relief cannot be given if they are absent because it
a. Disposition in their absence may impair the ability to protect their interests in the
controversy or
b. The absence would expose the existing parties to a substantial risk of double or
inconsistent obligations
c. As of 1990, the Supreme Court has held that a joint tortfeasor subject to joint and
several liability is not a person needed for adjudication.
C. Permissive Joinder
1. Parties may be joined when the claim made by the plaintiff against each defendant:
2. Elements:
a. Arises out of the same T/O &
b. Raises at least one common question of fact or law common to all parties
D. Where joinder is impossible
1. Joinder is not feasible if the addition of a party destroys diversity.
2. Then the court must determine if they can proceed without the party or should they
dismiss
a. Where the judgment would prejudice the party in question or existing parties
b. Where prejudice can be reduced in shaping the judgment
c. Whether judgment would or could be adequate
d. P is deprived of adequate remedy if lawsuit is dismissed
3. If there is a state forum where all the parties may be joined, the court prefers
dismissal rather than proceeding in the party’s absence.
4. The D may also implead joint tortfeasor by asserting a third party claim against the
D looking to be joined and that claim can be entertained by the court by invoking
supplemental Jx.
E. Supplemental Jurisdiction
1. Joinder of parties cannot defeat SMJ
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2. If joining party is joined in connection with a third party claim, there is no need for
diversity between 3rd party D and either P/3rd party P.
3. If third party claim does not involve the P, the P’s citizenship is irrelevant
4. But note that P can’t assert claim against 3rd party D unless independent basis for
SMJ*.
5. Third party diversity based on Supplemental Jurisdiction
a. Even when it fails diversity, no need for diversity between the Third Party D and
either the P or the Third Party P because the third party claim invokes
Supplemental Jx.
i.
Because the third party claim does not involve the P, the P’s citizenship is
irrelevant
ii. However, P can’t assert a claim against Third Party D unless there is an
independent basis for Subject Matter Jx.
16. Necessary & Indispensable Parties
A. Absentee is necessary and will be compelled if has any one of the following:
Complete relief cannot be given to
parties in his absence.
Impairs his ability to protect his
interest in the controversy.
His absence would expose others to a
substantial risk of double or
inconsistent obligations.
1. Without absentee, ct. cannot accord complete reliefmultiple suits
2. Absentee’s interest may be harmed if not joined
3. Absentee claims an interest which subjects a party (usually D) to multiple obligations
a. Worried about D, can get stuck with multiple obligations
4. The United States Supreme court has held that Joint tortfeasors subject to joint and
several liability are not needed for just adjudication and thus are not necessary
parties.
a. So unless the Ds are characterized as something other than joint tortfeasors, they
will not be considered a necessary party and will not be joined.
B. If necessary party is not feasible (because it destroys diversity)
1. Proceed without him or dismiss the whole case
2. To decide determine the following factors:
a. Is there an alternative forum available?
b. What is the actual likelihood of prejudice?
c. Can the court shape relief to avoid that prejudice?
17. Impleader
A. Claims involving a third party defendant (TPD)  Vicarious Liability
B. Derivative
1. Indemnity or
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2. Contribution
3. Have the right for 10 days after serving answer or
4. With court’s permission
5. Steps:
a. File a complaint with third P name
b. Serve process to third P name
i.
P can assert a claim if arises out of same T/O as underlying case
ii. TPD can assert claim against P if arises out of same T/O as underlying case
Three Claims
Must be Supported by Diversity or Fed.
Ques.
D to TPD
P to TPD
TPD claim against P
18. Intervention
A. Absentee wants to join a pending suit P or D
1. Must be timely
2. There are two kinds:
a. Intervention of right
Under Broad Fed. Rules, intervention is allowed when intervenor has an interest in the decision
of the lawsuit. However, after 1990, Suplemental Jx. no longer allows ancillary or Supplemental
Jx. over claims by one seeking to intervene as of right as a P.
i.
Absentee’s interest may be harmed if not joined & if interest not adequately
represented now.
ii. Allowed where intervenor has an interest in the decision of the lawsuit.
b. Permissive Intervention
Permissive intervention is available when (1) the applicant’s claim or defense & the main action
have a common question of law or fact & (2) Joinder will not destroy complete diversity.
i.
One common Question of Law or Fact
ii. Will not destroy diversity
iii. Discretionary with court
(a) Does not cause delay or prejudice
iv. Intervenor could mess up diversity
(a) No ancillary if intervenor is P
(b) Okay if D
19. Class Action
A. Numerosity (For practible joinder)
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B. Comonality (Questions of Law or Fact)
C. Typicality (Rep’s claims/defenses typical)
D. Adequacy (Representation is fair & adequate)
E. Category
1. Prejudice
a. Class treatment necessary to avoid harm to class members or opposing party
2. Injunction or Declaratory Judgment
a. Sought because class was treated alike by other party
3. Damages
a. Common Questions predominate
b. Class action is superior method for resolving dispute
c. Requires Notice
i.
To all reasonably identifiable members
ii. Can enter separate agreements through counsel
iii. Have the option to OPT out
4. All are bound to the decision, except those that choose Opt out of the damages class
5. No settlement or dismissal without court approval
6. Subject Matter Jx.
a. Citizenship of class rep
b. Traditional View: Amount in controversy must exceed $75,000 for every class
member.
c. Modern View: Amount in controversy must exceed $75,000 for class rep.
20. Discovery-Never been tested
A. Required Disclosures: Must be produced if nobody asks
1. Initial Disclosures: Persons and documents “likely to have discoverable info. That
disclosing arty may use to support its claims or defenses & computations for damages
and insurance”.
2. Experts: Who may be use at trial?
a. Qualifications
b. Data used
c. Compensation for study
3. Pretrial
a. No later than 30 days before trial
b. Witnesses are to testify live or by deposition
4. Discovery Tools & Rules-not tested since 1989
a. Which tools can be used to get info. From non-party
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b. Depositions
i.
Written or oral
ii. Can’t take more than 10, or depose same person twice
iii. Depo can’t exceed one day of 7 hours, unless court allows
c. Interrogatories
i.
Written questions to be answered under oath within 30 days
d. Request to Produce
i.
To make available for review & copying various docs. or things.
e. Physical or mental examination (Only through court order)
i.
Party’s mental or physical health is in actual controversy
ii. Good Cause-can’t get anywhere else
iii. Doctor privilege is waived
f.
Request for Admissions: Admit truth about any discoverable matter
i.
Used to authenticate documents
ii. Respond within 30 days of notice
(a) Admit, deny or neither
g. Parties sign substantive answers under oath
i.
Signed by counsel
ii. Certifying that it is warranted
21. Substantive Scope of Discovery
A. Anything Relevant to claim or defense
B. For Good Cause-Ct. can order discovery of anything relevant to subject matter of case
1. Relevant: reasonably calculated to lead to admissible evidence
2. Broader than admissible, even if inadmissible at trial
C. Privileged matter-Not discoverable
1. Work Product
a. Or trial preparation materials “in anticipation of litigaton”.
b. Exception
i.
Substantial Need
ii. Not otherwise available
2. Absolute Protection (of L or his party of rep)
a. Mental impressions
b. Theories
c. Opinions
d. conclusions
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D. Expert Witness: who may be used at trial?
1. Can take deposition of any expert witness
2. If expert retained in anticipation of litigation but will not testify, no discovery absent
“exceptional need”.
E. Enforcement of discovery
1. Protective Order sought if overly burdensome to produce
a. Trade secrets
2. Some answered and others objected to
3. Receiving party does nothing
a. Heavy sanctions imposed
22. Voluntary dismissal & default & default judgment
A. (Not tested) A-26
23. Failure to State a claim: D can move to dismiss
A. Ct. does not look at evidence-only face of complaint
B. Ct. assumes all allegations are true
C. Ct. asks “if the alleged is true would P win a judgment?”
D. Motion for judgment on pleading
1. Same as Failure to state a claim except D has answered.
24. Summary Judgment (Moving Party Must Show)
A. There is no genuine dispute as to material issue of fact &
B. There he is entitled to judgment as a matter of law
C. Must present admissible evidence
1. Pleadings are not evidence unless verified pleadings
2. View evidence in light most favorable to non-moving party
D. May be partial, as well as complete.
25. Jury Trial
A. The Seventh Amendment preserved the right to a jury trial in federal court in all suits of
Common Law.
B. Where damages are claimed as a part of an action seeking an injunction a jury trial cannot
be denied on the damages issue.
C. Amount of controversy must exceed $20.00
D. Must present in writing no later 10 days after service of last pleading addressing jury
triable issue.
E. Get jury on fact issues-not equity issues
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1. Where legal and equitable claims are joined in one action involving common fact
issues, legal should be tried first to the jury before the equitable claims are
determined by the judge.
F. 3 preemptory strikes allowed
G. Unlimited “for cause” strikes allowed (can’t be based on race or gender)
26. Directed Verdict (JAMOL: Motion for Judgment As A Matter of Law)
A. Takes case away from the jury
B. D can bring twice
1. After closing of P’s case
2. Again at close of all evidence
C. P can bring once (at close of all evidence)
D. Rule: where reasonable people could not disagree on result.
1. View evidence in light most favorable to non-moving party
27. Judgment not withstanding the Verdict (JNOV)
A. Judgment has been entered
1. Jury returned verdict and court entered judgment on that verdict
B. Must move within 10 days after judgment
C. Standard: “reasonable people could not disagree on the result”.
D. Must be at close of all evidence
1. Move for a directed verdict-Ask for JAMOL
2. If not done, then cannot bring the JNOV motion now.
28. Motion for a New Trial
A. Judgment has been entered but errors at trial require a new trial
B. Grounds
1. Prejudicial error at trial makes judgment unfair.
2. New evidence obtained that could not have been obtained with due diligence earlier
3. Prejudicial conduct
a. Attorney, third party or juror
4. Judgment is against the weight of the evidence
C. Must move within 10 days of judgment
29. Appeal
A. Only from final judgment
B. There must have been ultimate decision on the merits of the entire case
C. Test: Does trial court have anything left to do on the merits of the case?
1. If not, then not appealable
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30. Interlocutory (Non-Final) Review
A. Appeal even though not final judgment
B. Appeal allowed where:
1. Trial judge certifies that it involves a controlling issue of law as to which there is
substantial ground for difference of opinion &
2. Court of appeals agrees to hear it
C. Collateral Order Exception: App. Ct. has discretion to hear ruling on an issue if it:
1. Is distinct from the merits of the case
2. Involves an important legal question
3. Is essentially unreviewable if parties must wait for final judgment
D. Extraordinary Writ: Not an appeal, but an original proceeding in appellate court to
compel trail judge to make or vacate a particular order
E. Class Action: Court of appeals has discretion to review order granting or denying
certification of class action
1. Must seek review in 10 days of order
31. Res Judicata  Claim Preclusion
A. Once final judgment has be rendered on the merits of a particular cause of action, the P is
barred by res judicata from trying the same cause of action in a later lawsuit against the
same parties or privies
B. Requirements
1. Must be same P bringing against same D
a. Must be in the same configuration or not barred
2. Fist case must have ended in a valid final judgment on the merits
3. Must involve the same claim.
a. Claim: is any right to relief arising from a transaction or occurrence or a series of
related transaction
i.
Modern Law requires: assertion of all claims arising out of the same T/O that
are subject matter of the claim to be asserted by the P.
(a) Discuss whether different activity or fact involved; or
(b) Are they a series of related transactions
ii. Under Primary Rights View (Minority): if different rights involved from the
claim then can sue & Res Judicata will not bar action
b. Property damage/personal injury: argue both ways
i.
Splitting up causes of action: Most courts don’t allow a P to sue for P.I. &
Property damages in separate action.
32. Collateral Estoppel  Issue Preclusion
1. Precludes re-litigation of a particular issue “actually litigated & necessarily
determined”
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2. Requirements
a. First case ended in a valid, final judgment on the merits
b. Same issue was “actually litigated & necessarily determined”
c. The issue was essential to the judgment
d. Can’t be unfair or inequitable
3. Can only be asserted against someone who was a party to the first case or their rep.
a. Same parties or their privies
4. Mutuality not required if Collateral Estoppel is used as a shield (by D) and not a
sword (by P).
5. Non-Mutual Defensive (Person asserting is D)
a. Allowed if party who was a party in the prior case has a “full & fair opportunity
to litigate” in the first case.
6. Non-Mutual Offensive (Person asserting is P)
a. Probably not allowed but courts may allow if it is fair
i.
D had full opportunity to litigate in prior case
ii. D could have forseen multiple litigation
iii. P could not have easily joined in the first case
iv. No inconsistent judgment on record
7. Mutuality:
a. While traditional mutuality rules forbid use of collateral estoppel against a person
who was not a party, modern rules apply collateral estoppel to a non-party when:
i.
The identical issue was decided in the first case
ii. There was a final judgment in the merits
iii. The party to whom collateral estoppel is applied has a fair opportunity to be
heard in the earlier case &
iv. It would not be unfair or inequitable to apply collateral estoppel
b. Cts. favor using C.E. as a shield and not a sword.
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