Essay on "Civil Procedure"

Essay 8 pages (2132 words) Sources: 0

[EXCERPT] . . . .

Civil Procedure

Chapter one deals with personal jurisdiction and related matters. The introductory pages of the chapter cover both a historical perspective on jurisdiction and how this has evolved since the 19th century and an overall presentation of the main types of personal jurisdiction. It includes references to cases such as Pennoyer vs. Neff and International Shoe Co. Vs. Washington, which define the degree to which state can exercise its jurisdiction over other judicial and legal entities. Later parts of the chapter expand on the discussion around defining state jurisdiction and include the constitutional grounds for it (including in cases such as Internet transactions), the statutory authorization needed and the litigating jurisdiction. Other related matters include notice and forum non-conveniens.

Chapter two moves the discussion towards the subject matter jurisdiction of federal courts and refers mainly to the types of cases that can be judged in a federal court and related matter. In an overview, such cases include diversity, federal question, supplemental or removal jurisdiction. The chapter continues to detail all four types of cases.

Chapter three is a unifying chapter of the first two, in that it discusses the relation between state and federal law. The first part of the chapter refers to how state law is taken into consideration in a federal court and the degree to which it can be applicable in a federal court. This subchapter deals with the historical perspective as well, presenting the evolution of the rule of state law in federal courts, starting with the initial Swift v. Tyson decision and with its overruling by the Erie Railorad v. Tompkins decision. While the Erie decision also stipulates that there is no federal general common law, the chapter further explains how this actually occurs in practice and what are those particular situations (or rather areas) where federal courts can actually create common law.

Chapter four deals with the pleading procedure in a vast framework that includes a historical perspective of pleading and how it evolved, the main elements of the pleading process, the judgment on pleadings and all related matters. The civil action starts with a complaint and the chapter goes into detail to describe the form of the complaint, the different parts of a complaint (caption, allegations of subject matter jurisdiction, allegation of facts upon which recovery is sought etc.) and pleading specific claims. All other subsequent acts such as challenges to complaint and different forms of claims are analyzed. The chapter also goes into some of the duties that the attorney has with relation to claims. Judgment of pleadings is referred to, including its purpose, the elements included and issues raised.

Chapter five defines the parties that can be part of a lawsuit. Moving from the initial judicial framework in which only the legal owner of a right could bring a legal action, the common law now provides that anyone with a legal right to enforce a claim can sue, as long as this is done under his or her own name as a plaintiff. Other than the definition of this notion of real party in interest rule, the chapter provides further explanations on the way the real party in interest is determined and the means by which this quality can be contested and attacked. The chapter continues to discuss the capacity of an entity to be party of a lawsuit, either as the party to sue or the party to be sued. In cases when a lawsuit includes a very large number of parties, the legal framework has taken into discussion the idea of potentially joining several plaintiffs

Chapter six introduces the notion of discovery and the introduction focuses on two issues: identifying the actual scope of discovery procedures and underlying potential problems that may appear in this particular area (the authors list nonlitigation use of discovery information, failure to respond to requests in a timely manner and harassing an opponent into a settlement among the most important ones).

As the chapter unfolds, the authors discuss some of the most important discovery instruments that are used in judicial practice, notably depositions, interrogatories or medical examinations. As always, each of these subsections is very thorough and goes into detail to cover the definition of the respective discovery instrument, the different elements that can appear during the process and any potential problems or particularities that one will need to look out for.

One of the most important subsections of chapter six reflects the use of discovery at trial. The chapter is very well structured: it starts with presenting the notion of discovery, follows through on some of the instruments that can be used and clarifies, towards the end of the chapter, the degree to which the results of the discovery is actually information that can be used in a deposition or in a legal argument. Finally, the chapter emphasizes that civil litigants are also allowed to used private investigation, along all the other means of discovery previously listed and addressed.

Chapter seven addresses the issue of summary judgment. The idea of a summary judgment is to avoid a lengthy trial (with all associated issued deriving there from, such as costs and use of human resources) and come up with a legal solution before a trial process is actually undertaken. The court can analyze facts and pass a judgment if there is sufficient information for that. Certainly, this alternative option to a trial is strictly regulated by certain elements and a summary judgment will not be passed under certain conditions. However, the summary judgment is still a reasonable flexible instrument that courts use. This flexibility includes the capacity to pass on a partial summary judgment, if the only some of the claims brought in court can be a subject of such a procedure.

Essay

Gilbert's Law Summary on Civil Procedure is, as all the books in this collection, an excellent summary and outline of this legal field, covering a variety of civil procedure issues at individual, court, state or federal levels. As the other books, the summary on civil procedure combines the regular text approach and the descriptive instruments of codes, legal cases and situations with a wide array of visual aids that includes charts, tables that resume some of the information presented, and other means to make the information presented more compact and readable. One such additional mean is also the exam tip, which appears occasionally throughout the chapters. While this is conceived as a helping tool for the student, it is also a useful information bullet that reminds the reader of a particularity that he or she might need to be additionally careful about.

Some of the most beneficial elements in the chapters are the introductory paragraphs (each chapter has its own introduction), in which the author actually makes an excellent summary of the issues that will be discussed in the chapter. For example, the introduction for chapter 1 on territorial jurisdiction briefly shows the different types of territorial jurisdiction, follows-up with some of the relevant case decisions in this segment of civil procedure (most notably the Pennoyer decision) and develops, in a schematic manner, the rest of the chapter.

Additional to the introduction, each chapter usually also has a chapter approach, in which the author resumes the main question that the respective chapter aims to answer. The same first chapter that has been discussed in the previous paragraph proposes four questions to be answered, including where there is a general statute or rule to attribute jurisdiction and, if so, whether the respective attribution is constitutional (the book refers to this as key exams questions, but these are also excellent tools by which the reader can understand from these first pages of each chapters what the direction of the theory in the chapter is).

The book also combines different levels of approach, at the same time the state and federal levels, the individual level, as well as the theoretical and practical levels. On the latter, the book emphasizes not only the numerous theoretical notions that a lawyer has to be accustomed with in terms of procedures, codes, jurisdictions etc., but also goes into detail on the actual legal practice in different cases. One such relevant chapter is the chapter on pleading (chapter four). As always in Gilbert's summaries, the chapter is overwhelmingly comprehensive in that it also refers to the history of pleading. This may seem as a purely descriptive and not necessarily useful part of the chapter, however, it is essential in understanding some of the rules of pleading, as previous legal decisions have created them and how the current situation was reached. Notably, this history section combines descriptions of various part of American codes (most importantly, the civil procedure code) with judicial decisions (such as the Briscoe vs. Reader's Digest decision in 1971).

Another relevant example in the sense of what has been mentioned in the previous paragraph is the chapter on appeals (chapter 10), most notably the subsection on appellate procedure. This section of the chapter provides the basic… READ MORE

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