American Civil Litigation
and Dispute Resolution
University of Insubria, Como, Italy
Jeffrey W. Stempel
William S. Boyd School of Law
University of Nevada, Las Vegas
Segment 1
The U.S. Court System
Overview of a Lawsuit
Jurisdiction and Venue
Three Branches of Government
• The Courts (state and federal)
• The Legislature (state and federal—Congress)
• The Executive (The President and
Administrative Agencies; in states – the
Governors and Administrative Agencies)
The United States’ Federal Court of
Appeals
AMY E. SLOAN, BASIC LEGAL RESEARCH: TOOLS AND STRATEGIES 7 (4th ed. 2009).
AMY E. SLOAN, BASIC LEGAL RESEARCH: TOOLS AND STRATEGIES 7 (4th ed. 2009).
AMY E. SLOAN, BASIC LEGAL RESEARCH:
TOOLS AND STRATEGIES 201 (4th ed. 2009).
Lexis-Nexis Congressional Universe,
How Does a Bill Become Law?
The Sources of U.S. Law
• Common Law System
– Federal and state Case Precedent
• But Many State and National Statutes
– Common law vs. Code law?
– Statutes vs. Codification
• Substantive Law
– Affects rights and duties
• Procedure
– Governs manner of enforcing rights/duties
American Federalism and Its Impact
on Civil Litigation
• State law dominates in spite of growth of federal
(national) government during 20th Century
• State courts have “general” jurisdiction
• Federal courts have “limited” jurisdiction
– Need Specific Authority to sue in federal court
• Federal Courts must have “subject matter” jurisdiction
over the topic of the dispute
• All courts must have “personal” jurisdiction over the
parties to the lawsuit
• Usual focus is on the defendant; Plaintiff has consented
to personal jurisdiction by filing suit in the forum state
American Federalism and Its Impact
on Civil Litigation -- II
• Concurrent Jurisdiction
• Independence of the federal and state judicial
systems
• “Federalism” or “state’s rights” has created
some cases where federal courts “abstain”
from deciding a case (even when they have
the power) to let state courts have first chance
at the matter
American Federalism and its Impact
on Civil Litigation -- III
Image: Four Corners National Monument / flickr.com
http://www.flickr.com/photos/jakesmome/2064516469/
• Unless lawsuit involves federal
law, state law governs
• Where disputes involve
different states or persons
from different states, there
may be need for trial court to
conduct “choice of law”
analysis to decide which state
law applies
Factors for Choosing Applicable State
Law Include:
• Citizenship of Parties; Residency of Plaintiff
and Defendant
• Location of accident, contract, or events
• Location of evidence, information, documents
• Place where injury or impact is felt
• Relative interest of state governments
• Whether law of one state is “better,” clearer,
or more developed than others
American Federalism and Its Impact
on Civil Litigation -- IV
• Even though state law controls in cases in federal
court because of diversity jurisdiction
– Federal procedure rules apply
– Federal Rules of Civil Procedure (1938) as a code of
procedure
– Federal Rules of Evidence and Appellate Procedure as
well
• States have procedure similar to federal system
but with significant state-to-state difference
Importance of Procedure
• Due Process – Constitutional Guarantee –
“Fairness” “Opportunity to Be Heard”
• Jury Trials
• Role of Judge (determines applicable law)
• Role of Jury (finds facts and applies law)
• Motions to Dismiss; Summary Judgment
• Requirements for Complaints and other pleadings
• Governs the amount of information (“discovery”)
that must be exchanged
The Path of a Lawsuit
The Path of a Lawsuit
• Don’t Forget the Preliminaries
– Client Engagement, Interview, Retainer
– Investigation
– Legal Research
– Attorney or plaintiff may be punished for bringing
unfounded claim
– Fed. R. Civ. P. 11 (must do some research to have a
basis to think a claim is valid)
– Forum Selection/Forum Shopping
The Path of a Lawsuit -- II
• Complaint
• Service of the Complaint (a/k/a service of
process)
• Defendant Response(s)
– Answer
– Motion to Dismiss (Fed. R. Civ. P. 12)
– Counterclaim (Compulsory or Permissive)
– Cross-claim
The Path of a Lawsuit -- III
• If Motion to Dismiss is not granted, case
proceeds
• Mandatory Disclosure
– Exchange of Basic Facts with other parties
• Discovery
– Efforts to ferret-out facts from opponents or
others
– Extensive set of Civil Procedure Rules on Discovery
(more detail later)
The Path of a Lawsuit -- IV
• Discovery Generally
– Broad Scope
– But Subject to Privilege
• Privileges exist when social need to foster
relationship and confidentiality outweigh
social need for the information
• Privileges developed according to common
law
– Unless a specific statute on point
The Path of a Lawsuit -- V
• After adequate opportunity for discovery . . .
• Parties may make “dispositive” motion that
would determine the case
• Summary judgment is the primary and usual
motion after discovery is completed
• If Summary judgment is denied, case moves
forward
• Pretrial conferences, witness lists, documents
lists, settlement conferences
The Path of a Lawsuit -- VI
•
•
•
•
•
•
•
If no settlement, case proceeds to trial
Jury Selection
Opening Statement(s)
Plaintiff’s “case-in-chief”
Direct examination of witnesses
Introduction of documents
Introduction of “real” evidence
(e.g., gun, jewelry)
• Cross-examination by opposing parties
The Path of a Lawsuit -- VII
• Expert Witnesses
• Plaintiff rests
• Then comes Defendant’s motion for
“judgment as a matter of law”
• If denied, Defendant must present its case-inchief
• Defendant presents witnesses and documents
• Defense rests
The Path of a Lawsuit -- VIII
• Motion for Judgment as a Matter of Law at
the conclusion of all evidence
• Usually made by both plaintiff and defendant
• If denied, case to be submitted to the jury
• Closing Arguments
• Jury instructions
• Jury Deliberation
• Verdict
The Path of a Lawsuit -- IX
• After verdict, loser may attack verdict
• Motion for judgment as a matter of law
(again)
• Grounds for JAML (and Summary Judgment)
• Movant argues that material facts not in
dispute and law applied to those facts favors
movant even if jury rendered verdict to
opponent.
The Path of a Lawsuit -- X
• Motion for a New Trial (as alternative to JAML)
• Will not reverse the adverse verdict but will
give movant another chance with new jury
• Granted where
– Verdict against the weight of the evidence
– Verdict too high or too low
– Erroneous jury instructions
– Trial misconduct by lawyers, jurors
– Really bad evidence rulings by judge
The Path of a Lawsuit -- XI
• If no grant of new trial or JAML, loser must
appeal within 30 days
• “Briefs” by counsel argue the issue
• Then “oral argument” before panel of 3 judges,
sometimes entire court
• Usually 18-24 months until a decision
• During that time, parties often negotiate, settle
claim
• But appeals succeed only 40 percent of the time;
the trial verdict winner has the advantage
Appellate Review
• Did lower court err in law?
• May not revisit the facts unless the lower
court is the fact finder and the fact finding is
clearly erroneous
• Will not usually overturn the jury’s fact finding
but may find that the judge’s jury instructions
were erroneous - case may be tried again
Standards of Review for Appellate
Courts
• Questions of law -- look at the issue “de novo”
• Questions of fact -- overturn a court’s finding
of facts only if “clearly erroneous”
• Appellate courts do not take testimony – fact
finders had opportunity to see the witnesses
testify – more qualified to decide the facts
The Path of a Lawsuit -- XII
• After trial or when appeals process has run its
course, winning party may recover some costs of
litigation
• In USA, loser and winner each pay their own
attorney fees (the “American Rule”). In Britain,
the winning party is often awarded attorney fees
(the “English Rule”)
• Some exceptions to the American Rule in the USA
by statute, contractual agreement, or as a
punishment for bad faith by a party or counsel
The Path of a Lawsuit -- XIII
• After “judgment” is final and entered, the
loser (or its insurance company) typically pays
• But if no voluntary payment, the winner is a
“judgment creditor” who may use “creditor’s
remedies” to satisfy the judgment. Examples:
– Garnish loser’s wages to pay claim
– Take funds from loser’s bank account, etc.
– Place lien on loser real estate; if sold, judgment
paid from sale proceeds; foreclosure a possibility
The Rare Possibility of Supreme Court
Review
• After appeals process exhausted, losing party
may petition for review (grant of a “writ of
certiorari”) by the U.S. Supreme Court
• Only about one (1) percent of petitions for review
granted
• Supreme Court will not take case just because it
suspects error by lower courts
• Case must present constitutional issue or involve
important area of national law where lower
courts are divided
Judicial Power and Subject Matter
Jurisdiction
• U.S. Constitution (1787) (and various
amendments since)
• Article I – Legislative (establishes Congress –
House and Senate)
• Article II – Executive (the Presidency, etc.)
• Article III – Judicial (Supreme Court and basic
grant of federal judicial power for federal
questions and related things, “diversity”
jurisdiction)
Federal Question Subject Matter
Jurisdiction
• Established in Article III of the Constitution
• Codified in 28 U.S.C. § 1331
• States that federal courts have subject matter
jurisdiction that “arises” under federal law
(statute, treaty)
• No federal question jurisdiction unless federal
law is involved in the claim
• A defense based on federal law does not
create federal subject matter jurisdiction
Tests for Federal Question Jurisdiction
• Does federal law “create” the cause of action?
– Or
• Does federal law comprise an “essential”
ingredient of the cause of action?
• Because federal courts are courts of “limited”
jurisdiction that should not supplant state
courts, federal question jurisdiction is
construed narrowly
Federal “Diversity” Subject Matter
Jurisdiction
• Established in Article III
• Codified in 28 U.S.C. § 1332
• Federal courts have subject matter jurisdiction
when all plaintiffs and all defendants are
citizens of different states (the rule of
“complete” diversity)
• If the matter in controversy exceeds $75,000
in value
Diversity Jurisdiction (con’t)
•
•
•
•
Citizenship means “domicile”
Domicile means one’s home
People are born with a domicile
Can change it by relocating with
intent to change domicile (summer
camp and university not enough –
if you plan to return home after)
Diversity Jurisdiction (con’t)
• Dual Domicile/Citizenship of Corporation
• Place of incorporation (e.g., Delaware)
(corporations are charted in a particular state
in the U.S. – no national chartering system)
• And
• Principal Place of Business
• Almost Always Means Company Headquarters
• Clarified in Hertz v. Friend (2010)
Another Federalism Wrinkle:
Removal
• After a lawsuit is filed in state court, the
defendant may be able to “remove” it to the
nearest federal court if
– It could have been brought in federal court
– On the basis of either federal question or subject
matter jurisdiction
– Must act within 30 days
– All defendants must join in multi-defendant case
– If a diversity case, only a defendant who is not a
resident of the forum state can remove
Personal Jurisdiction
• Subject Matter Jurisdiction is judicial
power over the subject matter of the
lawsuit (e.g., violation of federal law;
plaintiff and defendant from
different states)
• Personal jurisdiction is judicial power
over the parties – particularly the
defendant
• Exercise of personal jurisdiction must
satisfy “Due Process”
Due Process
• Guaranteed against the federal government
by Fifth Amendment to Constitution
• Guaranteed against state governments by the
Fourteenth Amendment
• Defined as
– Reasonable and fair notice of the claim
– Opportunity to be fairly heard
– Before a neutral adjudicator
– In a fair forum
Personal Jurisdiction and Due Process
• Court exercise of personal jurisdiction in an
unfair forum violates due process
• Forum considered unfair if defendant lacks
sufficient contact
• Where the claim is connected to forumrelated activity of the defendant, there must
be sufficient “minimum contacts” so that
court jurisdiction does not offend sense of
fairness and justice
Personal Jurisdiction and Due Process
• Where the claim does not
relate to defendant’s activity in
the forum state, there may still
be “general” personal
jurisdiction over the defendant
because it has pervasive
presence in the state
• Test is whether defendant’s
presence is “continuous” and
“systematic”
Venue
• “Venue” means the place of trial within the
jurisdiction/state
• Basic rule codified at 28 U.S. § 1391
• Venue generally proper
– Where all defendants reside
– Where a “substantial part of the events giving rise
to the claim” occurred
• Some differences and complexities not
addressed in this class
Venue -- II
• If venue is improper where lawsuit first filed,
defendant may move for dismissal
(28 U.S.C. § 1406)
• Or court may transfer case to a place of
proper venue
• Or defendant may seek change of venue to
more convenient venue (28 U.S.C. § 1404)
Venue -- III
• Preferable venue determined by
– Location of parties
– Location of real evidence
– Access to/Convenience of
• Witnesses
• Documents and other proof
– Burden on court relative to its connection to case
(e.g., fairness of imposing a New York-centered
trial on California jurors)
Applying Personal Jurisdiction
International Shoe v. Washington
• State of Washington sought to tax a shoe
company headquartered in St. Louis, Missouri
(more than 1,000 miles away)
• Shoe company was soliciting business in
Washington and presumably making money
from the sales – State wanted its fair share of
tax
• Company takes position that it can only be
taxed if it has enough presence in the state
International Shoe (con’t)
• Company had no office, no phone, no
inventory, no showroom, no billboards, no
newspaper advertisements, etc.
• But it did have salesmen making calls and
showing product (although the salesmen
didn’t even have a complete pair)
• Supreme Court finds that these contacts are
weighty enough to support personal
jurisdiction
International Shoe (con’t)
• The Shoe company contacts, although
modest, were sufficient because
• They were intentional
• As part of a business model
– Which meant the Company benefitted from
contact with Washington
– And enjoyed the protections and privileges of
operations within the state
International Shoe (con’t)
• Because the contacts were “related” contacts
connected to the subject matter of the litigation
(tax nexus, revenue, and amount of tax), it was
not unfair to require the shoe company to appear
in Washington if it wanted to contest the tax.
• Important – being subject to personal jurisdiction
is not a decision on the merits of the case. The
Company could still win on the tax question.
– But now it must defend in Washington State.
– Cannot force the tax authorities to come to Missouri.
Goodyear Dunlop v. Brown
• Outlines Concept of “General” personal
jurisdiction
• Where defendant has “continuous and
systematic” presence in a state, the state may
exercise personal jurisdiction over the
defendant over any matter
• Even where the topic of the lawsuit does not
related to Defendant’s activities in the state
Goodyear Dunlop v. Brown
• General personal jurisdiction is contrasted with
“Specific” personal jurisdiction
– Under “specific” jurisdiction (as in International Shoe),
the defendant can be sued in a state where it has
“minimum contacts” related to the litigation
• Translated: a company can almost always be
sued where it is headquartered or has substantial
ongoing operations
– Just like a person can be sued in a state of residence
or significant property ownership
– But simply distributing goods in a state does not
create general personal jurisdiction
Goodyear Dunlop v. Brown
• Under Goodyear, mere sales or other activity,
even if significant, is not enough to create
general personal jurisdiction
• Rather, the contact must be significant,
continuous, and systematic
• The state must be one where the defendant
has an ongoing presence rather than merely
one linked to the lawsuit
What Conveys General Jurisdiction
After Goodyear ?
• Certainly corporate headquarters
• And substantial manufacturing, research, or
warehouse facilities
• And retail outlets if large enough or common
enough
• But sales representatives, trade shows, sales, or
servicing or marketing are probably not enough
to create general jurisdiction -- unless arising
from a continuously systematic presence in the
state.