American Tort Law

Carolyn McAllaster
Clinical Professor of Law
 Duke University School of Law

Class One
Federal Courts and Civil Procedure
U.S. Government Organization
Hierarchy of binding precedents
U.S. Constitution
 Federal Laws
 State Laws
 Common Law
 Local Ordinances

Horizontal Federalism
Dual system of state and federal
jurisdiction
 Federal System

U.S. District Courts (trial courts)
 US Courts of Appeals
 US Supreme Court
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50 state court systems
United States Courts of Appeals
Personal Jurisdiction

Over property
Where 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, or
 Has certain minimum contacts with the
forum

(International Shoe Co. v. Washington, 326 U.S. 310 (1945)
Federal Court Jurisdiction
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Federal Question Jurisdiction
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Cases “arising under the Constitution, the
laws of the U.S., and treaties
Diversity Jurisdiction
Citizens of different states
 Amount 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 Procedure
Starting the Lawsuit

Party meets with his/her attorney

After investigation, attorney files Complaint

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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 Procedure
Defendant’s Response
Defendant has 20 days to respond to
Complaint after service;
 Response can be either:

Motion to Dismiss
 Answer

Motions to Dismiss

Grounds for Motion to Dismiss
Lack of subject matter jurisdiction
 Lack of personal jurisdiction
 Improper venue
 Insufficiency of process
 Insufficiency of service of process
 Failure to state a legal claim
 Failure 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 plaintiff
 Cross-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-finding
 Fairness
 Earlier settlement
 efficiency

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 questions
 Transcript can be used at trial

To impeach witnesses
 As testimony of unavailable witnesses

Forms of Discovery
Interrogatories

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 Discovery
Request 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 Examination

Used 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
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Jury selection (voir dire)
Plaintiff’s opening statement
Plaintiff’s evidence
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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 Motions
To set aside verdict
 For a new trial


Appeal of verdict to higher court

Appellate Court affirms, reverses, or
reverses and remands