1. Introduction to Litigation Civil Procedure - Waterstone

2. Overview INTRODUCTION TO LITIGATION A Look at the Court System – Litigation Explosion? A Look at the Court System – Litigation Explosion? Incentives to Litigate Incentives to Litigate Substitionary Remedies – Compensatory and Punitive Damages Specific Relief; Declaratory Relief Financing Litigation Provisional Remedies

3. A Look at the Court System – Litigation Explosion? Is there too much litigation? Relationship between procedure and caseload. Ex. – How would changing Rule 54(d)(1) to include attorneys fees as costs create more or less litigation? Ex. – How would changing Rule 54(d)(1) to include attorneys fees as costs create more or less litigation? Would this be a good thing? Would this be a good thing?

4. Incentives to Litigate Substitionary Remedies – Compensatory and Punitive Damages Compensatory – restore injured party as nearly as possible to position he would have been in had it not been for wrong of other party. Compensatory – restore injured party as nearly as possible to position he would have been in had it not been for wrong of other party. Qualifications: Qualifications: Value to average person Mitigation Duty to record keep Lost time These are general principles that can and are modified by statutory or common law. These are general principles that can and are modified by statutory or common law.

5. Incentives to Litigate Substitionary Remedies – Compensatory and Punitive Damages Punitive Damages Punitive Damages Substantive rule: Degree of reprehensibility of D’s conduct Degree of reprehensibility of D’s conduct Disparity between actual harm and punitive damage award. Disparity between actual harm and punitive damage award. Difference between punitive and applicable civil penalties. Difference between punitive and applicable civil penalties. Procedural rule: Court of appeals needs to conduct de novo review Court of appeals needs to conduct de novo review Differences/similarities between criminal law and punitive damages.

6. Incentives to Litigate Specific Relief – Injunctions Remedial hierarchy today? Remedial hierarchy today? Does it exist? Yes – have to show legal relief inadequate. Yes – have to show legal relief inadequate. No – courts grant injunctions all the time. No – courts grant injunctions all the time. If so, why? Courts do not like to monitor injunctions Courts do not like to monitor injunctions Test: Test: Balancing of interests of the parties who might be affected by the Court’s decision – the hardship on plaintiff if relief is denied as opposed to the hardship to defendant if it is granted. The main prerequisite to obtaining injunctive relief is a finding that plaintiff is being threatened by some injury for which he has no adequate legal remedy.

7. Incentives to Litigate Financing Litigation – “Show Me The Money” Hourly v. Contingent (cash/credit) Hourly v. Contingent (cash/credit) Contingent fee as insurance system Contingent fee as insurance system American rule/English rule American rule/English rule Move away from American rule: Move away from American rule: Federal Rules (Rule 68) Contract Common law Statute (civil rights statutes include attorneys’ fees as costs) Evans – conditioning settlement on waiver of attorneys’ fees) Evans – conditioning settlement on waiver of attorneys’ fees) Buckhannon – overruled “catalyst theory;” no attorneys fees if D changes rule/statute and moots case. Buckhannon – overruled “catalyst theory;” no attorneys fees if D changes rule/statute and moots case.

8. Incentives to Litigate Provisional remedies TRO/Preliminary injunction – relief pending final adjudication of dispute TRO/Preliminary injunction – relief pending final adjudication of dispute Standards: Standards: P will suffer irreparable injury; P will probably prevail on merits; in balancing equities, D not harmed more than P helped; granting injunction in public interest. Combination of probable success and possibility of irreparable injury OR serious questions raised and balance of hardships. Fuentes – due process limitations Fuentes – due process limitations Contempt/Collateral bar rule. Contempt/Collateral bar rule.

9. Introduction to Litigation – Policy Issues Relationship between procedure and caseload. How does lawyers payment impact what cases are brought and how cases are litigated? Role of court in injunctions and preliminary relief.