CIVIL PROCEDURE II - THE RULES

Law 322, Section 01 – Fall Semester, 2000

Professor Chin

COURSE REQUIREMENTS & SYLLABUS

Course Requirements & Overview

"Civil Procedure II – The Rules" introduces students to the procedural rules that courts in the United States use to handle non-criminal disputes. The course equips students with a working knowledge of the Federal Rules of Civil Procedure, along with an introduction to statutory analysis, and advocacy.

The objectives of this course are to provide students with context and integrate theory, policy, and doctrine in order to demonstrate the connection between the study of civil procedure and the practice of law. To accomplish these objectives, this course will provide both a solid scholarly overview and will convey the reality of practice by presenting civil procedure in its full theoretical, social, and historical context, and by examining important course topics such as: pleadings; motions; sanctions; simple joinder; discovery; judicial control of results; and choice of law.

This "Course Requirements & Syllabus" document is your guide to this course. Even though we will discuss this document at the beginning of the course, you should read it carefully. This means that you are deemed to be on notice of all its contents
(i.e., ground rules) regardless of whether you have actually read it or not.

REQUIRED CLASS MATERIALS

(1). Subrin, Minow, Brodin & Main, Civil Procedure: Doctrine, Practice, and Context, (2000) (Aspen Law & Business);

(2). O'Connor's Federal Rules – Civil Trials (2000) (Jones McClure Publishing Inc.)

GENERAL INFORMATION:

You can contact me at 293-6838. If you get my voice mail, leave a number, state the reason for the call, and the best time to return your call. You can also send e-mail messages to me at cchin@wvu.edu which is available at my website. Class announcements and other relevant information about the course will be posted on the website, on the bulletin board or on the board outside Room #210. My secretary, Tara George-Jones, is located in Room #210; her phone number is 293-7776.

Don't hesitate to make an appointment with me to discuss questions or comments about the course. However, I suggest that you schedule office appointments in advance to avoid scheduling conflicts with other students. I cannot stress strongly enough how important it is to come and see me early in the semester if you think you need help understanding something. If you are doing the reading but still feel lost or confused, please do not wait until the last three weeks of class. I can help. But not at the last minute.

SEATING CHART:

You will have the opportunity to choose your seat for the rest of the semester during the second class session when the seating chart will be distributed for your signatures. It may take some time for me to learn all of your names so it is important that you sit in the seat you have chosen on the seating chart.

ATTENDANCE AND LATENESS:

Attendance is mandatory, and will be taken daily. It is your responsibility to sign the class roster when it is circulated at the beginning of each class. Please remember that the Code of Conduct is in effect when you sign the class roster and represent that you are present for class. Absences, latenesses, and early departures/mid-session departures will be dealt with on a case-by-case basis. It's rude and distracting for students to leave the room (i.e., for a break, etc.) during class. Each lateness or mid-session exit will count as half an absence. Excessive absences, latenesses, mid-session exits or any undue conduct in the classroom may result in administrative removal of the offending student from the course or in a reduction of his/her grade.

Lateness is unprofessional, disruptive, and most of all, distracting, both to other students and the professor. You should be in your seat and ready to begin work when class starts. However, I am willing to be flexible about allowing late arrival or early departure for good cause, such as a doctor's appointment, child-care problem or job interview, provided the good cause is brought to my attention beforehand. So, if you will be unavoidably detained for legitimate reasons, please let me know ahead of time, and take your assigned seat when you come in or if you are unavoidably detained because of an emergency (e.g., a traffic accident), you may also take your assigned seat and inform me after class. It is your responsibility to be aware of any communications from me – announcements, e-mails, website/bulletin board postings, or handouts; if you are absent from class or late, check with your classmates for any communications or assignments that you may have missed.

You will be ineligible to take the final exam and will be dropped from the class if you miss more than four (4) classes without legitimate excuses (e.g., emergency, personal illness or family member's illness). The four absences can be any combination of actual absences, latenesses or mid-session exits. It is also your responsibility to keep track of your absences, latenesses, and mid-session exits during the semester.

CLASS PARTICIPATION:

Class time is the only time that we have to work together on the course material, so it is extremely important that you be prepared for class on a consistent basis. Class works best and is far more enjoyable when as many people as possible get involved and participate on any particular day, especially when we discuss the Practice Exercises and Review Problems assigned below. I would do you a great disservice if I did not challenge you to think in class; therefore, if no one volunteers to answer a question, I will call upon students at random.

Minimum Participation (15% of the overall grade). Each student will be required to participate in class discussion in order to meet minimum participation requirements. Each student must sign up at least three (3) times. Minimum class participation requires that you sign-up to participate in the discussion during an upcoming class, using forms that I will bring to class every week; up to nine volunteers will be chosen for each class session. Signing up should be done during the entire semester. Students may not sign up more than once every three weeks. The advantages of this system are that you know you are "on call," you will know the material that we will be covering, and it only happens a few times during the semester. Students who sign-up, are called upon, and answer correctly/prepare adequately, will get a participation credit; if they are unprepared, they will suffer an automatic deduction. You may raise your hand and offer to answer questions at any time, and, if you get them right, you will receive a credit for class participation.

Outrageously bad class participation (i.e., disrupting class by talking or other disruptive behavior, or disturbing the class by acting in an offensive manner) can lower your course grade.

Quality of Participation. I will consider the quality of student participation and conduct to further adjust final grades, as I deem appropriate. As long as you show that you have read the material and have made a good faith effort to understand it, you have satisfied the preparedness requirement for each class. In general, it will be to your advantage to volunteer, and not to your advantage to pretend to be prepared when you are called on. If you found the material difficult to understand, or think that you will have trouble answering questions about it, say so, and we will try to work through the material together. I urge you to participate in every class and to share any relevant insights regarding the material, so do not hesitate to ask for clarification in class. Good questions and comments generate better class discussions.

COVERAGE OF MATERIAL:

In the syllabus below, I list assignments organized by topic, rather than by class session. It is possible that we may move more slowly in the beginning of the semester or at various times during the semester depending on the learning curve of the class. We may discuss several topics in a single session, or a complicated subject may be discussed over several sessions. The syllabus is subject to change, as needed, during the course of this semester; I may edit and perhaps even skip a few topics such as the last two topics on the syllabus: Section IX – The Right to Jury Trial and Section X – Questioning & Taming the System/ADR. If that occurs, I will adjust the syllabus and will announce if you should continue to follow the tentative schedule below. If other changes are required, I will announce if, instead, you should prepare 25 to 30 pages of the material ahead of where the previous class session ended. If we end up following the latter schedule and you are absent from a previous class, it is your responsibility to find out on what page the previous class ended. Students, especially those who sign-up for a particular class, should contact me to make sure what material will be covered.

For each topic, I will list the relevant pages in our casebook (hereinafter, "CB") and the relevant pages in our federal rules text (hereinafter, "FRCP").

GRADING:

(1) Class participation will count for 15% of the overall grade, as outlined above;

(2) The final examination for this course will be a three hour examination during the Fall 2000 Final Exam period. More information about the exam will be provided towards the end of the semester, and there will be a review session on the last day of classes.

EDUCATIONAL EQUITY:

West Virginia University is committed to educational equity. WVU does not discriminate based on race, sex, age, disability, veteran status, religion, sexual orientation, color or national origin. I concur with this commitment and expect to maintain a positive learning environment based upon open communication, mutual respect, and non-discrimination.

SYLLABUS
  1. An Introduction to the Federal Rules of Civil Procedure

    1. Introduction to Course, Law as Theater
      1. CB 1-17
    2. An Opening Case, The Power and Limits of Courts
      1. CB 17-25

  2. Thinking Like a Trial Lawyer, Pleadings and Simple Joinder

    1. Stages of Litigation, Elements and Burdens of Proof
      1. CB 187-207, 1033-1035
      2. Do Practice Exercise 6, CB 207

    2. Complaints
      1. CB 207-238 (skip P.E. 7), 1036-1046
      2. FRCP 1-3, Pg. 515
      3. FRCP 7(a), 8(a), 8(b), 8(e), 8(f), 9, Pgs. 522-526
      4. FRCP 12(b)(6), 12(e), Pgs. 529-530
      5. FRCP 84, Pg. 620 / FRCP Form 9, Pg. 626
      6. Do Practice Exercise 8, CB 238

    3. Answers, Motions and Affirmative Defenses
      1. CB 244-259 (skip P.E. 9), 1047-1050
      2. Read FRCP 8(c), 12(c), Pgs. 523, 529-530
      3. Reread FRCP 7(a), 8(b), 12(b)

    4. Amendments
      1. CB 260-274, 1051-1058
      2. FRCP 15, Pgs. 534-536
      3. Do Practice Exercise 10, CB 271-273

    5. Sanctions
      1. CB 296-314 (skip P.E. 11)
      2. FRCP 11, Pgs. 526-529
      3. Reread CB 1130-1134
      4. Do Practice Exercise 11, CB 314-315

    6. Simple Joinder, Counterclaims and Cross-Claims
      1. Joinder, CB 315-323, 1061-1063 and FRCP 18, Pg. 539 and FRCP 20, Pg. 541
      2. Counterclaims and Cross-Claims, CB 323-328 and FRCP 13, Pgs. 532-533
      3. Do Practice Exercise 12, CB 328
      4. Necessary and Indispensable Parties, CB 945-963 and FRCP 19, Pgs. 539-541
      5. Interpleader, CB 963-964 and FRCP 22, Pg. 542

    7. Third-Party Practice
      1. CB 328-334 and FRCP 14, Pg. 533-534
      2. Do Review Problem, CB 334-336
      3. Reread 1061-1063, 1068-1070
      4. Do Practice Exercise 13, CB 333-334

  3. Discovery

    1. The Role of Discovery, Discovery Techniques
      1. CB 337-356 (skip P.E. 14), 1071-1073 and FRCP 26, Pgs. 549-555
      2. FRCP 33-37, Pgs. 563-570
      3. (Review: CB 1033-1035, 1040-1043, 1047-1050, 1052-1058)
      4. (Skim: CB 1074-1104 Discovery Devices)

    2. Zealous Advocacy and Ethical Considerations, Adversariness in Discovery
      1. CB 362-399 and FRCP 16, Pgs. 536-538
      2. Do Practice Exercise 15, CB 385-387

    3. Criticism: Recent and Proposed Reform
      1. CB 399-414 and FRCP 26(a)(1), 26(b)(1), Pgs. 549-551
      2. FRCP 30(d)(2), Pg. 559
      3. FRCP 34(b), Pg. 564

  4. Judicial Control of Results

    1. Summary Judgment
      1. CB 470-500, 1105-1112, 1122-1125, 1126-1127 and FRCP 56, Pgs. 591-594
      2. Do Practice Exercise 19, CB 500-502

    2. Dismissals, Directed Verdicts, Judgments N.O.V., New Trial Motions
      1. CB 502-530, 1163-1176 and FRCP 41, Pgs. 572-573
      2. FRCP 50, Pgs. 581-583
      3. FRCP 52, Pgs. 584-586
      4. FRCP 59, Pgs. 596-597
      5. FRCP 61, Pg. 600
      6. Do Practice Exercise 20, CB 530

    3. Motion to Vacate Judgment, Instructions, Types of Verdicts, Bifurcation/Trifurcation, Remittitur and Additur
      1. CB 530-547 (skip P.E. 21 & 22), 1177-1180, 1181-1190 and FRCP 60, Pgs. 597-600
      2. FRCP 49, Pgs. 580-581
      3. FRCP 42, Pg. 574
      4. Do Review Problem CB 557-559

  5. The Choice of an Appropriate Court

    1. Supplemental Jurisdiction
      1. CB 804-828

  6. Choice of Federal or State Law—The Erie v. Tompkins Problem

    1. Erie Railroad Co., Guaranty Trust Co.
      1. CB 837-851
    2. Byrd, Hanna
      1. CB 851-867
    3. Walker, Gasperini
      1. CB 867-881

  7. Finality and Preclusion

    1. Issue Preclusion
      1. CB 910-925
    2. The Counterweights to Finality
      1. CB 934-941 (Start at Allen v. McCurry),
      2. Do Practice Exercise 33, #1-5, CB 941-942

    N O T E :
    SECTIONS VIII & IX WILL BE ASSIGNED ONLY IF THERE IS SUFFICIENT TIME
    TO WORK ON THEM AT THE END OF THIS SEMESTER.

  8. The Right to Jury Trial

    1. Right to Jury Trial
      1. CB 434-447 (skip P.E. 17, P.E. 18)
    2. Jury Selection: Techniques and Purposes
      1. CB 447-470 and FRCP 47(a), Pg. 579
      2. FRCP 38(b) / 38(d), Pg. 570

  9. Questioning and Taming the Current System

    1. Alternative Dispute Resolution
      1. CB 589-614

  10. REVIEW

    1. Review classnotes, reading notes, and outlines prior to the session
    2. Prepare up to three questions on areas you are unclear about to be discussed during the review session.

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