CIVIL PROCEDURE OUTLINE∶.docVIP

CIVIL PROCEDURE OUTLINE: I. INTRODUCTION TO THE CIVIL PROCESS: Civil procedure provides the mechanism through which disputes are resolved, when persons involved in disputes cannot follow the usual process of resolving disputes Substantive law (rights, duties, obligations) vs. procedural law (rules that govern rights, duties, obligations; provides a mechanism for applying substantive laws to concrete disputes) Adversarial process: the litigants themselves carry the burden of presenting the facts Study of civil procedure: study of how substantive law is enforced THE JUDGE’S ROLE: Band’s Refuse Removal, Inc. v. Borough of Fair Lawn (1960): Facts: Carpassos entered into contract w/ Borough for garbage collection. Borough required permit to collect garbage, and denied Π permit. Procedural Facts: Judge communicated w/ Π’s attorney before trial and discussed production of witnesses. Judge secured files documents from prosecutor’s office sifted them in advance; called witnesses on his own motion or had amicus (“friend of the court” who acts for one party in brief) to do so. Judge produced a large number of witnesses and added their testimony into evidence. Judge created new issues never mentioned in pre-trial order. Rule: Trial judges must behave reasonably and exercise only limited power in calling witnesses and presenting new issues. Amicus in this situation acts as a proxy. Judges are typically unprepared ignorant in our system, so when they get overly involved they often make mistakes. Judge must give parties affected by new issues full fair opportunity to meet those issues. Carpassos should have been given reasonably time to answer cross-claims from Δ Substantive justice vs. procedural due process: fairness of process is important b/c the losing party will be more likely to accept the outcome Kothe v. Smith (1985): Facts: Judge directed counsel for parties to conduct settlement negotiations. Judge recommends the case to be settled for between