CIVIL PROCEDURE OUTLINE民事诉讼程序概览.docVIP

PAGE 1 PAGE 19 CIVIL PROCEDURE OUTLINE Winter 1999—Beckerman By Amy Harwell BUFFALO CREEK DISASTER A SURVEY OF THE CIVIL ACTION (pg1-20) You can get 3 things from a civil case: money injunctive relief declaratory relief Lawyers get paid: 1) contingency fee, or 2) pd by the hour and a retainer Federal Rules adopted in 1938 Adversarial system (as opposed to the judge finding the facts) party presentation party prosecution --judge is a passive referee or umpire Advantages Disadvantages both sides get an advocate If the judge is lazy, stupid participatory quality, more willing Lawyers not evenly matched to comply If parties get involved for some Is the truth more likely to come out? other reason besides the normal ones American Rule—each side pays its own legal fees English Rule—loser pays the legal fees 3 exceptions to the American Rule contractural common fund—free rider problem statutory fee shifting—prevailing ? shall get a reasonable attorney’s fee (ex. Discrimination) Rule 1—Scope of Rules The rules are to secure the “just, speedy, and inexpensive determination of every action” Critiques of the federal rules --it takes too long --red tape, bureaucratic --too expensive Purposes of Civil Procedure to redress wrongs to compensate injunctive relief to order relationships The problems of moving a lawsuit through has been tremendously increased. Why? Federal Speedy Trial Act—criminal cases have to be brought to trial within 180 days, so the civil docket suffers Increased use of Federal Sentencing Guidelines—mandatory minimums reduce a judge’s discretion and put it in the hands of the prosecutors. More likely to plea bargain before. But now, judge can’t take the plea bargain into account, so they don’t plea bargain and more cases go to trial. Rule 3—Commencement of Action A civil action is commenced by filing a complaint with the court. Ways to answer a complaint deny demurrer (say “so what, even if I did all the things you allege, it does