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Chapter 04 - Litigation
4-1
Chapter 4
Litigation
Learning Objectives
The purpose of this chapter is to acquaint the students with the “rules of the game” so that they
can appreciate the challenges of litigation. Students will gain a better understanding of the
litigation process and the parties to a case, how issues such as standing to sue, personal
jurisdiction, and class-action can impact litigation, the steps and costs associated with discovery,
the pretrial and trial procedures in litigation, and the process for appeal and enforcement of
judgments. Students should gain a better appreciation of the intricacy, difficulty, and costs of
resolving disputes by litigation.
References
Abramson, Jeffrey, We, the Jury, Harper-Collins Publishers (1994).
Blake, Susan H., Practical Approach to Effective Litigation, Oxford University Press
(2005).
Press 2005).
Federal Rules of Civil Procedure, West Publishing (2000).
Garner, Bryan, The Winning Brief, Oxford University Press (1999).
Gruthan, Roy et. al., Lawyers and Thieves: Legal Shenanigans, Courtroom Scandal, and the
Endless Hunt for Money, Simon & Shuster (1990).
Harr, Jonathan. A Civil Action, Random House (1996).
Moore, James W., Moore’s Federal Practice, New York: Bender (1984).
Teaching Outline
I. Litigation—An Overview (LO 4-1)
A. Parties
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Emphasize:
by the outcome of the case.
That standing is satisfied in the sample complaint.
Case 4.1: Mayer v. Belichick, 605 F.3d 223 (3rd Cir.)
Cases for Discussion:
1. Havens Realty Corp. v. Coleman, 102 S.Ct. 1114 (1982).
The Fair Housing Act of 1968 outlaws discrimination in housing and authorizes civil
suits to enforce the law. Suit was filed against the defendant operator of two apartment
4-3
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
truthful information. Because Congress, in this act, intended to give standing the fullest
extent possible, a plaintiff must simply allege that the defendant’s actions resulted in a
distinct injury. Since Coleman received false information, he can properly allege that the
defendants injured him. Since Willis received accurate information, he cannot properly
allege a violation of the Fair Housing Act.
2. Sierra Club v. Morton, 92 S.Ct. 2361 (1972).
Plaintiff, an organization concerned with conservation, brought suit for a declaratory
judgment and an injunction to restrain federal officials from approving an extensive
3. Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167 (2000).
An environmental group filed a citizen lawsuit against the defendant alleging
noncompliance with the Clean Water Act. The court found sufficient environmental
injury in fact when the plaintiffs claimed that they used the affected areas and are
persons for whom the aesthetic and recreational values of the area will be lessened.
C. Personal Jurisdiction
Emphasize:
The necessity of finding both subject matter and personal jurisdiction.
That personal jurisdiction over the defendant usually is obtained by the service of a
summons, although in some cases it is obtained by the publication of notice and mailing
a summons to the last known address.
The reasons for long-arm statutes and the three elements that must be evidenced for a
court to apply a long-arm statute.
The type of conduct that confers personal jurisdiction.
Sidebar 4.2 ‘Personal Jurisdiction: Minimum Contacts’ and the case of World-Wide
Volkswagen v. Woodson case.
Sidebar 4.3 discussing where Mark Zuckerberg resides.
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Cases for Discussion:
1. Burger King Corp. v. Rudewicz, 105 S.Ct. 77 (1985)
A Michigan franchisee refused to vacate a Burger King restaurant premise after his
franchise was terminated. The Burger King Corporation brought a diversity action in a
Florida federal court. The franchisee claims that the Florida court has no personal
2. Calder v. Jones, 104 S.Ct. 1482 (1984).
Shirley Jones, a professional entertainer who lives and works in California, brought suit
in a California state court claiming that she had been libeled in an article written by the
3. Toys “R” Us, Inc. v. Step Two, S.A., 318 F. 3d 446 (3rd Cir. 2003).
The Third Circuit reversed the district court’s dismissal of a trademark and
cybersquatting case against a Spanish retailer. The court ruled that although Toys “R”
Us had not established personal jurisdiction, it had established enough to allow
jurisdictional discovery to go forward.
D. Class Action Suits
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Emphasize:
The reasons that plaintiffs desire to file class action suits. How much of the motivation
is the lawyers’ desire for fees?
That many cases are not financially feasible unless filed as a class action, but note that
the Supreme Court discourages class-action suits at the federal level. Do not assume that
class-action suits can be easily settled either.
Sidebar 4.4 on class-actions in federal court.
Sidebar 4.5 on examples of major class-action lawsuits.
How a non-response by an individual to a request to join into a class-action suit can
enjoin the individual as well as bind them to whatever decision or settlement is made.
Case 4.2: Wal-Mart Stores, Inc. v. Dukes, 564 U.S. __ (2011)
Additional Matters for Discussion:
Today, it is increasingly the corporate defendant that wants to be sued in a class action.
It often actively arranges for the class action suit to be brought by a nominal plaintiff
with the help of a friendly attorney. The aim is to render a quick settlement that binds all
class members and precludes costly individual litigation.
II. Pretrial Procedures (LO 4-3)
A. Pleadings
Emphasize:
Figure 4.1 on pretrial procedure.
The various pleadings that may be filed by a plaintiff and a defendant. Stress that the
main purposes of the pleadings is to give notice of each party’s contentions and to
Compare the pleadings required in a small-claims court with those in courts of general
jurisdiction.
Note the trend of filing a complaint as a means of extracting a settlement offer in lieu of
costly litigation.
B. Steps in Discovery
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Emphasize:
That the reason the surprises do not occur is the process of discovery.
Purpose
Emphasize:
That discovery practice is designed to ensure that each side is fully aware of all the
facts involved in the case and of the intentions of the parties.
Methods
Emphasize:
The discovery methods such as depositions, interrogatories, requests for production
of documents. Note the cost of conducting depositions of potential witnesses.
The use of requests for admissions after discovery has been completed.
The role of discovery in encouraging settlements and preventing surprises at trial. It’s
important to take advantage of the discovery process to learn as much as about the
strengths and weaknesses of the case as possible.
C. Scope of Discovery
Emphasize:
That discovery is very expensive and often time-consuming for the parties involved.
The development of e-discovery and sheer amount of information now stored
electronically and the costs of producing it.
That firms often go through thousands of emails and hard-drive files that may have
nothing to do with the litigation.
Sidebar 4.7 regarding massive amounts of client data and whether “clouds” may provide
Review Sidebar 4.9 on litigations holds and e-discovery.
D. Motions
Emphasize:
That motion practice is a critical part of the litigation process.
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The various motions that may be made to raise issues before, during, and after the trial.
The fact that a motion for a directed verdict raises issues similar to that of a motion to
dismiss for failure to state a cause of action.
The importance of a motion for summary judgment when there are no material facts in
dispute.
The distinction between a motion for summary judgment and one for a judgment on the
pleading.
Figure 4.2 showing examples of typical pretrial motions.
E. Frivolous Cases
Emphasize:
That frivolous lawsuits are misunderstood by many individuals and corporations.
The importance of Rule 11 of the Federal Rules of Civil Procedure and similar state
rules to control frivolous cases.
Sidebar 4.10 ‘Frivolous Lawsuits against Ringling Brothers.’
That penalties may be levied against an attorney, not only for filing a frivolous case
based on subject matter, but also for filing motions or papers with the court that unduly
harass or delay.
Case for Discussion:
1. Chambers v. Nasco, Inc., 111 S.Ct. 2123 (1991).
One party to a lawsuit had engaged in a pattern of abuse during the litigation.
Issue: Can a judge order the abusive party to pay the other party’s legal bills as a form
of punishment?
Held: Yes. This authority to penalize abuse extends not only to the litigant’s conduct in
the lawsuit, but also to other related action not directly before the court.
III. The Trial (LO 4-4)
A. Jury Selection
Emphasize:
The steps in a trial: jury selection, opening statements, introduction of evidence, jury
instruction, and closing argument. Review Figure 4.3 listing the trial steps.
Sidebar 4.11 on how the internet can affect juries.
Chapter 04 - Litigation
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
The use of the peremptory challenge and note that a peremptory challenge means no
cause or reason normally need to be given to excuse a prospective juror. Compare a
peremptory challenge with a challenge for cause.
The use of peremptory challenges to remove potential jurors because their race violates
the law.
That gender-based peremptory challenges are now also prohibited.
Sidebar 4.12 on the jury and constitutional limits on peremptory challenges.
Sidebar 4.13 on religion and peremptory challenges.
Cases for Discussion:
1. Edmonson v. Leesville Concrete Company, Inc., 111 S.Ct. 2077 (1991).
Edmonson, a black construction worker employed by Leesville, was injured when a
company-owned truck rolled backward and pinned Edmonson against some construction
equipment. Edmonson sued Leesville on a negligence claim. During voir dire, Leesville
protections against discrimination by reason of race.
2. J.E.B. v. Alabama Ex Rel. T.B., 114 S.Ct. 1419 (1994).
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peremptory challenges to remove male prospective jurors. The court excused two male
prospective jurors for cause, and the petitioner used one of its peremptory challenges to
selection causes harm to the litigants, the community, and the individual jurors who are
wrongfully excluded from participating in the judicial process.
Additional Matters for Discussion:
Call attention to the marginalia quote from Thomas Jefferson that he considered “trial
by jury as the only anchor yet devised by man, by which a government can be held to the
principles of its constitution.”
Consider whether peremptory challenges should be eliminated altogether and simply
seat the first set of qualified individuals in the jury pool.
B. Other Steps during a Trial
Discuss:
When a directed verdict may be entered.
Sidebar 4.14 on technology in the courtroom and the “OpenCourt” Project.
The purpose and function of jury instructions. Do not underestimate the importance of
jury instructions given at the close of the case.
That judges often instruct jurors to ignore testimony or events that occur in court. Is this
Read several jury instructions at the beginning of class. Do not let the students take
notes on them at the end of class, give a quiz on the instructions. Let the results point
out how little jurors actually understand the instructions.
Some pattern jury instructions to illustrate the way courts use them to connect the jury
function (fact finding) with the law. For example, California adopted the following
