Tuesday, February 20, 2007

Where to Start?

What topic do you cover first in Civil Procedure? 

This is an issue I’ve struggled with since leaving practice for teaching a few years back.  On the first day of class, I tell my students that learning Civil Procedure is difficult because the topics are interrelated.  A student can’t fully appreciate the importance of forum choice without understanding its effect on the law to be applied to the case.  On the other hand, sometimes I think a primer on the traditional approach to choice of law might help students unravel Pennoyer v. Neff.   

The problem, of course, is that we have to start somewhere.  We have to pick our poison.  For better or worse, my poison is territorial jurisdiction.  I spend the first two class days providing the students with an overview of the litigation process—my “anatomy of a lawsuit” lecture.  Then I assign Pennoyer and watch panic fill their eyes.  My students are smart, but Pennoyer makes them feel as though they are reading Greek. 

Oddly enough, I suppose that’s why I begin with Pennoyer—it makes a powerful impression.  Pennoyer teaches students that law school is damned hard and different from anything they’ve done before.  Pennoyer won’t tolerate a student simply taking what he wants from it and leaving the rest. It requires a struggle—a fitting metaphor for law school in the first week. 

Then again, starting with territorial jurisdiction has its downsides.  I’ve discussed this issue with other CivPro Profs, and many of them advocated starting with pleading (or even judgments) rather than Pennoyer.  Thoughts?



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Jeremy -- My sense is that the "anatomy of a lawsuit" thing is fairly common; my own version is a long hypothetical with a bunch of questions to try to get the students to think about what the rules _should_ be before we ever discuss what they actually are. I then do procedural due process first, both because I've been totally brainwashed by Owen Fiss, and because I think it makes Pennoyer and personal jurisdiction a lot more accessible to first-semester 1Ls if they're already thinking about the court's power over the parties in a broader sense. There are a couple of casebooks that put DP up front; Hazard, which I use, is my favorite of them.

But, I think much of this is personal preference, and not "right" or "wrong" answers...

Posted by: Steve Vladeck | Feb 20, 2007 10:31:51 AM

I begin with pleading and work my way through the pre-trial process (Discovery/SummJudg/FRCP 16 & Settlement). Along the way, I introduce the vague concepts of personal and subject matter jurisdiction in talking about Rule 12 and how those objections are brought. When we get to jurisdiction, I tell the class we are "doubling back" to give content to the motions we already discussed--to talk about what the analysis entails, beyond how the issue gets raised.

I agree with Steve that it really is personal preference. This is how I learned it in law school and this is what I have followed as a teacher. The only confusion arises when the 1Ls are divided into sections and different professors begin with different things and students begin comparing notes in the first couple of weeks . . .

Posted by: Howard Wasserman | Feb 20, 2007 5:17:34 PM

I think we've all got some "hook" that we use to get our students excited about procedure at the start of the course. For some, it's the satisfaction of following a series of cases to see how the law develops. Those folks tend to start the traditional way, with personal jurisdiction. For others, it's about fundamental fairness and justice. Goldberg v. Kelly, perhaps. For me, the hook is litigation process and strategy -- getting students to think about what they'll actually do when they've got a client with a dispute that needs to get resolved. So I move pretty early into pleadings, discovery, and trial, and I save jurisdiction for later, when the students have a better sense of what litigation is all about. Students, I think, get more engaged in material if they can see why they need it. That's easy when you start with pleadings. It's tougher when you start with Pennoyer. Which isn't necessarily a reason not to start with Pennoyer, as long as you realize, as Jeremy does, that you're starting out with a struggle.

Posted by: Howard Erichson | Feb 28, 2007 1:14:29 PM

I begin where I think every responsible lawyer should begin: What does my client want, and what process will help me get there? That translates into appropriate dispute resolution and remedies. I first begin with the limits on the kinds of legal remedies offered by our legal system. To get an emotional connection, I begin with cases where courts award limited damages when people have done horrible things to animals, including companion animals (often called pets.). I then cover injunctions, punitives, and attorneys fees. This takes about four 75 minute classes. This usually is enough to let students realize that legal remedies may not get their client what she or he needs. I then do a class or two working with Getting To Yes and creative solutions to problems.

Overall, I then carry this theme of ADR through the rest of the civil procedure class. For each topic, I try to do two things. First, explan how the procedure affects negotiation. For example, when we cover the tendency of courts to deny motions to dismiss at the 12b6 and summary judgment level, I remind the class how this encourages defendants to settle even relatively frivolous cases. So, too, when we cover jurisdiciton I offer theoretical and empirical studies of how forum selection may affect the likelishood of success. (Thank you to Claremont for getting this kind of data!).

Of course, everyone wants to know about the exam, and my essay exam includes one long fact pattern with two mediator's questions. I think it gets people to take the material seriously to give them the exam -- along with the focus on mediation -- early in the semester. Typically, I end the fact pattern with the parties filing motions. The judge makes some comments, but refers the case to mediation. The students are told they will write a memo to assist the mediator. An example follows below of my usual instructions.

The mediator will try to help the parties work out a solution to the case. If the parties do not agree, it goes back to court. The mediator asks you for help.

The mediator tells you that parties often become flexible in mediation when they see the relative weaknesses and strengths of their case. She asks you therefore first to assess the relative merits of each of the arguments that the parties might make on appeal. “Oh,” she says, “and don’t make stupid arguments like, ‘they could say the earth is flat, but the other side would point out it is round.’”

She also tells you parties then sometimes may agree to Getting To Yes type solutions. She asks you to suggest some ideas for such solutions, including how both the kinds of things you might do to develop those solutions and some potential solutions themselves. “I’d like some ideas about specifics for this case. Don’t just tell me they should be creative or separate the person from the problem.”

Posted by: Clark Freshman | Mar 11, 2007 2:36:24 PM

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