Basics Outline

The Basics

FRCP, Relief Available, Burdens of Proof/Persuasion, Statutes of Limitations, Due Process

FRCP

1. What are they? Not a statute. Formed by judges. Applicable to federal courts only, but states have parallel systems which generally mirror federal rules. Formed by committees & passively accepted through Congress.

2. What do they do? regulate pleadings, joinder of parties, discovery, trial, judgment - entry of order that ends the case and the conditions for that, they speak to questions about certain kinds of remedies and when you can get them

Types of Relief

1. Compensatory (damages)

2. Punitive (punishment)

3. Injunction

4. Restitutionary (D pays P for D's gains, not P's losses)

5. Declaratory

6. Provisional (guarantees P relief, before claim is decided. Example: attachment)

BURDENS of proof/persuasion

Burden of pleading = requires only that x assert good faith as a defense in his pleadings

1. Note: usually, state of mind is not something that the party must prove of the other party

   1. Except in: discrimination, fraud. Counter intuitive.

2. Loading the dice argument: (in cases such as Gomez) Make the agency prove that they met the reasonable person standard as a matter of policy (make the agency doing the firing prove that it is the correct thing to do)

3. Ought to be assigned to the person with best access to information (but how can Swierkowicz have access to defendant's state of mind?)

BURDEN OF PROOF: Cleary's Theory:

1. Statute

2. Policy (are we trying to help one side over another - for example in Gomez where, because of the power difference, the defendant should have to have the burden of proof)

3. Fairness (who has access to the information?)

4. Probability (least likely to be right)

Burden of production = requires that x place sufficient evidence supporting all essential elements of claim to allow judge/jury to find she acted in good faith.

Burden of Persuasion = standard that the judge/jury is required to apply in determining whether it believes a factual claim is true.

Usually the party with the burden of pleading, also has the burden of production and persuasion.

Statute of Limitations

Rationale

1. Prevents cases from going 'stale' with too much time - loss of witnesses, documents, memories, etc

2. Allows defendant to move on with life

3. Encourages plaintiff to file promptly

Defense = Laches. Example: p takes too long to seek injunction and that makes it difficult for d to gather material defenses for the suit. Or p knows that d is building a house over plaintiff's boundary line and remains silent until the house is finished and p files suit, laches is a good defense

Due Process

1. 14th Amendment: ...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2. Right to Counsel

   1. Risk of loss of physical liberty = appointment of counsel (this is an argument in Lassiter, but not an explicit holding)

2. No risk of physical liberty = balancing the Elridge Factors: 1)Private interests at stake; 2) Government interests at stake; 3) Risk that procedure will lead to erroneous decision

   1. Lassiter: no counsel required because there was low risk of erroneous decision (issue not complex, no experts required, Plaintiff showed low interest in attending trial, Plaintiff did not respond to petition (waived right to counsel), Plaintiff did not talk to her lawyer before the proceeding, weight of evidence against Plaintiff was sufficiently great.

   2. Dissent: Matthews v Elridge factors always weigh in favor of plaintiff when at risk for eliminating right to children. There is always risk for error because 1) court is intimidating (judge used intimidation against Lassiter), uneducated indigents are more susceptible to intimidation (even if it is not express), 2) indigents will not understand the process & will...

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