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CIVIL PROCEDURE I: PROFESSOR SCHWARTZ’S CLASS – FALL 2013 A Reader’s Guide to A

CIVIL PROCEDURE I: PROFESSOR SCHWARTZ’S CLASS – FALL 2013 A Reader’s Guide to A Civil Action A Civil Action is a unique work of non-fiction. Although it’s a 17-year-old book about a more-than-20-year-old case, it remains a powerful, unstintingly honest and still largely current look at the American system of civil justice. Jonathan Harr, a very talented writer, was given “inside access” to behind-the-scenes proceedings, particularly those on the plaintiffs’ side, while the case was still going on. Because the rules of attorney confidentiality don’t normally allow this, it is quite likely that never again will there be such a skillfully written, blow-by-blow account of a civil suit. Reading it now for the sixth time, I still find this book compelling. Our Civil Procedure course will draw on this account and the underlying case, Anderson v. Cryovac, from time to time throughout the semester as a source of illustrative examples and class assignments. Therefore, it’s important that you read it in full before the beginning of the semester, so that you can understand the class discussions and assignments drawing on the book. How closely you read A Civil Action is up to you. There will be certainly be sufficient time for you to review relevant portions of the book as needed during the semester. But to get the most out of the book, I recommend an “engaged” rather than a passive read-through. By that I mean that you try to write down your thoughts and questions about what you read as you go along. To help you get more out of the book, this “Reader’s Guide” draws your attention to certain points and poses a few questions. Reading the notes and answering the questions is completely optional. The notes and questions are not intended as a comprehensive explanation of the various procedural rules that are played out in the book – those will necessarily wait until the Civil Procedure course. The idea is to get you to stop and think about what you’re reading from time to time. You probably know that this book has been made into a movie, which you may have seen. While I think the movie does a good job in capturing some of the main themes of the case, I strongly advise you not to use the film as a substitute for, or a “Cliff Notes” version of, the book. It should come as no surprise that the movie changes or entirely omits many, many vital details. In addition to this written Reader’s Guide, I will post one or two brief illustrated lectures that provide a very basic overview of the civil litigation system. Listening to these lectures is optional – you may find the overview helpful to following along the procedural steps described in the book. It is with mixed feelings that I impose on your time in your last summer before law school. After giving it much thought, I felt that reading this book will help give you a running start to better understand Civil Procedure and indeed your first semester experience as a whole. 1 NOTES AND QUESTIONS Big Picture Did the legal system – more specifically, the civil justice system – fail to redress the harm to the residents of Woburn? Does the legal system offer a workable process for redress? Could Schlictmann have obtained a better outcome (better for his clients, for society, or from any perspective you think appropriate) by conducting the case differently? If you think he made mistakes, try to identify them specifically. What, if anything, did he do well in handling the case? Consider the role of money in this case and the legal system. (See, e.g., pp. 280, 451-54, and the chapter on “The Negotiation”). Was there a way for Schlictmann to win redress for his clients without an award of money? The EPA’s settlement of a civil enforcement suit against Beatrice and Grace with its $69 million cleanup plan would not have provided any monetary compensation for the Woburn families. Would that have been a just outcome without any separate civil suit seeking compensation for the families? Has reading A Civil Action changed your view of the law or the legal profession at all? If so, how? Chapter 1 (pp. 9-50): Woburn: Summer 1966 Question: How would you feel about having Anne Anderson as a client? Chapter 2 (pp. 51-83): The Lawyer Notes: The value in 2011 dollars of the settlements and verdicts from the early 1980s would be a little more than double. The $4.7 million Carney verdict in 1983 would be about $10.84 million in 2012 dollars.1 p. 65: “Schlictmann filed [the Piper Arrow suit] ... three months after the accident.” A theme in this chapter is that the “value” of a case is often in significant part the amount of investigative and preparatory work the lawyer puts into it. Note how much investigative work Schlictmann did prior to filing the Piper Arrow lawsuit. p. 75: “statute of limitations” All civil cases must be filed within a certain period of time after the transaction or occurrence giving rise to the legal claim. These deadlines are set out in “statutes 1 Source: CPI Inflation Calculator, http://data.bls.gov/cgi-bin/cpicalc.pl 2 of limitations.” For a case like this, the date on which the “statute of limitations” begins to run can be a complex question. The author glosses over that when he asserts that the statute of limitations began running when the wells closed in May 1979. p. 80: Schlictmann “would have liked to speak to one of those men...” Rules of professional conduct prohibit a lawyer from speaking to adverse parties (including many of their employees) without their lawyer present. Question: Do you agree that Schlictmann’s decision to turn down the Eaton settlement offer was “a foolhardy gamble”? Chapter 3 (pp. 85-119): Rule 11 Notes: This chapter provides an excellent illustration of the contrast between a small firm trial practice (here, personal injury) and a large firm litigation practice. I would say that Cheeseman is more typical of a large-firm litigator than Facher, whose extensive trial experience is unusual in large firms. Rule 11 states that a lawyer should not file papers in court that are not “well-grounded in fact.” Cheeseman’s “Rule 11” motion argued in essence that the plaintiff’s lawsuit lacked factual support and that an adequate pre-suit investigation would have revealed that. But between the EPA report and other investigative work not mentioned in the book, it is clear in retrospect that Schlictmann and Roismann had done a fairly thorough pre-suit investigation and had a good factual basis for their claims. Judge Skinner’s decision to cross-examine Schlictmann was probably ill-advised and wrong, for many of the reasons argued by Schlictmann at the hearing. The adequacy of the pre-suit investigation and factual support for the suit could have been shown without the unusual step of questioning the lawyer in open court. Judge Skinner seems to have realized this as the hearing progressed. p. 103: “Gamache was shocked.” Keeping your clients reasonably informed about the litigation to which they’re a party is an obligation of professional ethics. The fact that one of Schlictmann’s clients was so out of the loop that he doesn’t even know whom he’s suing is bad practice and easily avoided. pp. 111-18: Although the specifics of the hearing were unusual, several aspects of this hearing are quite typical of trial court proceedings. In contrast with the strict formality of appeals court hearings, the freewheeling nature of this hearing is not so unusual for trial courts. Nor is it unheard of for a lawyer to get his way by sheer persistence, as Schlictmann did. 3 Chapter 4 (pp. 123-46): Orphans and Dogs Notes: The discussion of the Carney case repeats many themes from Chapter 2, particularly (1) the payoff from significant investment of time and money in a plaintiff’s case and (2) the risk of turning down a significant settlement offer. pp. 135-43: A summary judgment motion is a major step in pre-trial procedure. Most pre-trial dismissals of cases occur at this stage. It’s unusual for a summary judgment motion to be made and decided prior to discovery, as this one was (see Chapter 5: Discovery). On the other hand, the case had been pending for more than a year. In current federal court practice, the judges try to complete the discovery process in less than a year from the date the case begins. In the 1980s, much federal litigation went at a slower pace. p. 139: “Schlictmann meanwhile got Cheeseman to agree to yet another thirty-day extension.” Agreeing to extensions requested by your opponent is a commonplace “professional courtesy.” The federal procedural rules state a general policy that lawsuits should be decided “on their merits” rather than on deadline pressures or procedural technicalities. Had Cheeseman refused the extension, Schlictmann could have requested one from the judge, who would probably have granted it – and rebuked Cheeseman for refusing to agree to an extension without a good reason for doing so. “Causation” remains the uploads/Finance/ readers-guide-2013.pdf