Foundational Concepts

Question 1

What are the sources of law in Civil Procedure?

Answer 1

1. Federal Rules of Civil Procedure (“FRCP”)
2. Statutes (typically those codified in title 28 of the U.S. Code)
3. Federal rules (Federal Rules of Appellate Procedure, Supreme Court Rules, and Federal Rules of Evidence)
4. Case law

Question 2

Do the Federal Rules of Civil Procedure apply in state courts?

Answer 2

No, only in federal courts. States generally have their own rules of civil procedure, many of which mirror the FRCP.

Question 3

What are the 3 levels of federal courts?

Answer 3

1. District courts
2. Courts of Appeal
3. Supreme Court

Question 4

What is the difference between courts of law and courts of equity?

Answer 4

Courts of law: remedies typically involve monetary damages

Courts of equity: remedies typically involve injunctions or specific performance. Awarded when the legal relief is inadequate.

Question 5

What is are the basic policy considerations in Civil Procedure? (i.e. what are the rules designed to balance?)

Answer 5

The FRCP are designed to balance the court’s interest in efficient and prompt adjudication with the litigant’s interest in full development of the facts and right to seek relief.

Question 6

What are the 9 big picture stages in a civil lawsuit?

Answer 6

1. Decide where to sue (jurisdiction, venue, forum)
2. Prepare complaint
3. Serve complaint
4. Defendant responds
5. Discovery
6. Disposition without trial (summary judgment, arbitration, settlement, mediation)
7. Trial
8. Post-trial motions
9. Appeals

Question 7

Who writes the Federal Rules of Civil Procedure?

Answer 7

Promulgated (promoted) by the Supreme Court pursuant to the Rules Enabling Act. Proposed rules become part of the FRCP unless vetoed by Congress within 7 months.

Question 8

What is forum shopping’?

Answer 8

When P chooses a forum that will have the most favorable outcome. Generally discouraged.

See more: Forum Shopping

Question 9

If P is forum shopping, what sorts of factors are they considering?

Answer 9

• State or federal court?
• Would a local jury be more sympathetic or a federal jury?
• What choice of law is more favorable?
• State substantive? State procedural? Federal procedural? Federal substantive?
• Are the removal rules more favorable in one jurisdiction?