Agenda for 1st Class • Distribute Rules Pamphlets • Administrative Stuff • Newspapers & Public Radio • Clerking • Introduction to Civil Procedure • Introduction to Service of Process • Greene v. Lindsey • Introduction to FRCP • Service of Process under FRCP
Assignment for Next Class • Review any questions or materials we didn’t cover in class today • Service of Process and the Constitution (continued) • Questions for next class and Writing Assignment for Group 1 (WG1) • Question 9 on Greene v Lindsey handout p. 11 • Service of Process • FRCP 1, 4,12(b)(4) & (5) (in Rules Pamphlet) • 3 Blackboard questions on Service of Process • Questions for next class and Writing Assignments • Questions on Service of Process Under FRCP(next 2 slides) • Optional. Glannon 347-50, 354-55, Problems 1-8, 10, 11a, 12a, 13a, 14 • Scan on webpage • Note • (WG2) means mandatory writing assignment for Writing Group 2 • (WG3) means mandatory writing assignment for Writing Group 3, etc • Good idea to write and submit answers to questions not assigned to group • Need to think about questions even if do not turn in writing assignment • Because they are questions we will discuss in class
Questions on Service of Process Under FRCP I • (WG2) Prof. McCaffery sues Prof. Gross for giving him a hairy hand. Prof. McCaffery attempts to serve process but the process server he hired is unable to find Prof. Gross and her house is abandoned. So Prof. McCaffery publishes the summons in the Los Angeles Times. Is service of process valid? • Assume that the case was commenced in the federal district court for the Central District of California and that Prof. Gross resides in that district • Note that California statutes include the following provision: • Cal. Code Civ. Pro. 415.50. Service by publication • (a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article… • (b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served….
Questions on Service of Process Under FRCP II • It has been proposed that the Federal Rules of Civil Procedure should be amended to add a new FRCP (4)(e)(2)(D) that would read: • (D) delivering a copy of each by electronic means at a location previously accessed by the individual within 60 days of delivery. • a) Is this proposed amendment constitutional? What factors are relevant to this question? (WG3) • b) Is this amendment a good idea? If you were on the Rules Advisory Committee, would you recommend its adoption? (WG4) • c) If it were your responsibility to draft a new rule relating to electronic service of process, would you propose different language? If so, draft the rule you would propose. (WG5) • (WG6 & WG7) How could one argue that service of process by electronic means is already allowed under the FRCP in some circumstances? If you need more information to answer this question, what information do you need? I do not encourage you to do research to find the information you would need. Rather, I hope you will read FRCP 4 carefully to see what provision or provisions of it could be construed under some circumstances to allow electronic service of process.
Administrative Stuff • Everyone receive at least one email from me? • Everyone receive writing group from Chris Emerson? • Everyone successfully access the website? • See www.klerman.com. Click on “Civil Procedure” • You are responsible for the policies posted there • Everyone get books for class? • Blackboard quizzes • Nameplates -- Bring to class every day • First & Last name, BIG front & back: Write first name you want me to use • Seating Chart -- Put name you want me to use on chart • Office Hours • Mondays 2-3PM, Rm. 460 • May not consult materials from last year’s class • Audio recording posted to Portal • Attendance and participation are mandatory • May be included in grading • Email email@example.com if absent or unprepared • Not advisable to read ahead or do writing assignments in advance • Exam will be open book; MC in class + 8-hour take-home • Lunch this Thursday, 12:15-1:15 Rm. 106
Socractic Method • Starting next class I will call on you, even if you don’t raise your hand • Much of what you do in the law practice will be oral • Arguing your case to a judge or jury • Responding to a client's legal questions • Negotiating with opposing counsel • Discussing a case with a supervising attorney or partner in a law firm • Many of those situations will be ones in which others will be asking you questions and you will be expected to answer • Judges, partners, and clients set the agenda, and they will expect you to answer their questions • You can't say "I pass" to a judge • If you say it to a partner you may not be at the firm much longer • If you say it to a client, you are not likely to have many clients • I will sometimes try to argue you out of your position • Even if I think you are right • Good lawyer knows when and how to defend position, when to give in • Can be frustrating, but important
Newspapers • I strongly advise you to keep up with the news • Major Newspaper: New York Times, Wall Street Journal, or Financial Times • Online or hard copy • Hardcopy available in library • Public Radio: 89.3 KPCC, 89.9 KCRW • Law is in the news nearly every day • More generally, you will be a much better lawyer if you are up on current events • Also you will interview much better • Not to mention, you will be a better citizen
Clerking • I also strongly advise everyone to apply for a clerkship as the first job after graduation • Clerking for a judge is the very best job you can get after the law school • Learn more about practice of law, more quickly, than at any other job • Best way to make good first impressions at next job • So can acquire good mentors and supporters • Apply in summer between 1L and 2L year • Judicial externships and internships also good • But not a substitute
Introduction to Civil Procedure • Arguably most important course this semester • Unlikely to really use what you learn in Property or Contracts • But about half of you will become litigators • And even transactional lawyers need to know a little about litigation • Course is mixture • Part constitutional, part application of court rules, part statutory, part caselaw • Part theory, part very practical (court visit, mock mediation) • Civil, not criminal • Mostly pretrial and post-trial • Trial Advocacy is separate course • Pretrial is very important because most cases settle • Mostly federal • California and other states are similar • Separate course for California Civil Procedure
Structure of Course • Stages of a simple lawsuit • Service of process, pleading, discovery, trial, appeal • ADR • Settlement, mediation • Complex litigation • Multiple parties, multiple claims, multiple suits • Joinder, class actions, res judicata • Which court, what law • Jurisdiction, venue, choice of law, Erie doctrine
Introduction to Service of Process • How notify someone that sued? • Ideally personally deliver relevant papers to them • Relevant papers are summons and complaint • But personal delivery is sometimes too difficult or costly, so other methods sometimes allowed • Valid method must be authorized by relevant rules or statute AND must be constitutional • Important, because if defendant doesn’t respond to summons, subject to default judgment
Greene v. Lindsey Questions I • 1) Who were the parties to this litigation? • 2) How many courts were involved in this litigation? • 3) Was there a trial? • 4) How did each court rule? How did their reasoning differ? What authorities (statutes, cases, constitutional provisions) did they rely upon? How persuasive were their arguments? • 5) Did the Supreme Court reach the right decision? Why? • 6) Do you think tenants (including those not parties to Greene v. Lindsey) generally benefited from this decision? How might the decision help them? How might it hurt them? • 7) What is the rule of law ("the holding") established by this case? Try to state it in a single sentence.
Greene v. Lindsey Questions II • 8) Suppose you rent a posh apartment in Beverly Hills. The building has a doorman, 24-hour security, and other amenities. The landlord wants to evict you and attempts to notify you by posting the summons on the door to your apartment. You don't see the summons, and the landlord evicts you. You bring suit in federal court arguing that service of process was unconstitutional. Are you likely to win? Be sure to think of arguments both for why you might win and for why you might lose. Which are more persuasive?
Federal Rules of Civil Procedure • FRCP • Rules that govern civil cases in federal court • Written by Advisory Committee of judges, academics, and practicing lawyers, approved by Supreme Court. Congress can veto. • Interpreted like statutes • States have their own rules • Some states enact rules as statutes (e.g. California) • Approx. 35 states have modeled their procedures on FRCP • Unfortunately not California
Service of Process under FRCP 4(c)(1). Summons and complaint served together 4(c)(2). Service by anyone 18 or older not a party 4(e). Service on individuals by (1) method allowed by state law, or (2) delivering copy personally or leaving copy at home with person of suitable age living there 4(h)(1) Service on corporations by (A) method allowed by state law, or (B) delivery to officer, managing or general agent, agent authorized to receive service Officer = very high ranking person, e.g. CEO, Secretary, Treasurer State law usually requires designation of someone to receive service Names and addresses on website: https://businesssearch.sos.ca.gov/ All methods must be constitutional Waiver procedure in 4(d) seldom used, because defendant gets 60 days to answer complaint, rather than ordinary 21 15