Wednesday, January 19, 2005


By Stockton

Civil Procedure is a rich, complex legal tapestry that cannot be summarized in one, eight paragraph entry. Therefore, to gain a thorough understanding of this discipline, How To Law School will present two, eight paragraph entries on Civil Procedure.

Civil Procedure will teach you the rules that govern litigation in Federal Courts. Federal Civil Procedure can be found in The Federal Rules of Civil Procedure (FRCP). The FRCP contains all you'll need to litigate in Federal Court and comes complete with dice and two decks of game cards.

Almost every state in the union has adopted the Federal Rules of Civil Procedure for their own State Courts.* Thus, many students kill two birds with one stone, learning not only how to wrongly apply Federal Civil Procedure, but simultaneously learning to wrongly apply the procedure of their own state courts. One glaring exception is New York, which still holds fast to its own procedure.**

FRCP 4 - The Summons

A Summons is an invitation to come to court. It informs the recipient where to be, when to be there and what to wear ("You are cordially invited to present yourself at the Federal District Court for the Northern District of New York on Monday, May 11th at 12 O'clock in the forenoon to give me money...). The Answer is the RSVP. "Of course, I'd love to attend. And no, I won't be giving you anything."

Rule 4 also governs service of the pleadings. Service of process is extremely important and must be followed to the most insignificant detail. Improper service upon a defendant means that jurisdiction has not been obtained and therefore, the defendant is not subject to the jurisdiction of the court. Such a defect can often prove fatal to a suit.

The most common form of service is personal service. A process server must physically take the Summons and Complaint and whack the defendant over the head with it three times, while shouting, "You are served!" three times. Traditionally, the defendant is then supposed to tip the process server.

Pay particular attention to FRCP 4(g), service upon incompetents. This rule governs service upon children as well as adults who have guardians. It does not, I repeat, does not, apply to service upon government officials or your brother-in-law.

FRCP 11 - Signing of Pleadings, Papers and Sanctions

FRCP 11 is relatively new. It mandates that most papers in litigation be signed by the client or attorney of record. By signing, the attorney is attesting to the truth of what is contained in the papers. A violation of this rule can result in sanctions, or worse. Therefore, as much as you might want to, refrain from signing names like, I.P. Daily or U Fukkem Yung.***

FRCP 35 - Physical and Mental Exams

This Rule can be quite fun. If a Plaintiff places their physical or mental health in issue, opposing counsel can request that the Plaintiff be examined by a physician or mental health expert. Here's a fun thing to do: purchase a white lab jacket and schedule the physical or mental health examination at your office. When the Plaintiff arrives, and if she (or he) is good looking, You conduct the exam. If you have ever spotted a box of latex gloves in a law office, thank Rule 35.

FRCP 45 - Subpoenas

The Subpoena (pronounced sub-pony) comes from the Latin and literally translated means, 'under the pony'. In ancient Rome, people who ignored a court order to produce themselves or documents were punished by being thrown underneath a pony.

Advocate: Your Honor, Cicero refused the order to appear and testify.
Judge: Then it's under the pony for him!

Subpoenas can be great fun. They are typically used to ensure a non-party's attendance at trial or depositions. Also, they are used for the production of documents or other evidence. But don't limit the scope of what you do with a subpoena. Be creative. Use subpoenas to order lunch, make your spouse produce credit card bills and even have video stores deliver rentals straight to your house. They are also great for last-minute shopping.

Rule 47 - Jury Selection

Jury selection in Federal Court has been honed to a near perfect science and, unlike state court, the attorneys have little involvement. The Federal system of jury selection is known as 'One-Potato-Two-Potato' and ensures that only the least knowledgeable individuals too stupid to avoid jury duty are selected to try their peers.

* Before a State can formally adopt the FRCP, the state is thoroughly investigated to ensure it will provide a safe and nurturing home.

** New York Practice derives from the early procedures of the Anglo-Saxon Althing (cir. 581 AD) although it remains slightly more archaic than its predecessor.

*** Unless your name is I.P. Daily or U Fukkem Yung.

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