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Themes I. Law and the Legal System II. Lawyering Process a. Litigation strategy b. Moves III. Ethics and Professionalism IV. Public Policy
1. Lawyer Identity/Role and Judge Role 2. Attorney/Client Relationship 3. Interview/Counseling 4. Fact Investigation: (facts don’t become evidence until trial; allegations become facts when admitted into evidence) 5. Litigation Planning a. Theory of the Case o Substantive: nature of the claim/subject matter o Procedural: strategic and tactical moves/mechanical/probability of merits b. Theory of Proof (testimony/docs/evid.(real/demonstrative) o Theory of Error to prove a breach by virtue of error that would make it proximate cause o **Every claim must have a theory of proof** 6. Remedies and Attorneys’ Fees · DamagesàCompensatory/Punitive (Available at CL) · Injunction (Available in equity) · Declaratory Judgment (Available in equity) · Provisional Remedies · Fees o 1983: anti-clan act o 1988: kicks in with 1983 or any other civil rights acts (fee shifting statutes) o 2412: Equal Access to Justice Act—only applies to the feds (against US if can establish that position is not substantially justified) o 1915: in forma pauperis 7. Pleadings (complaint, answer, reply) (affirmative and defensive) a. Claims-Theory of the Case (18a) will determine the parties as well b. Parties (20a) 8. Forum Selection (fed v. state: subj matter jurisdiction) and Judge Shopping · Vertical: Fed or state · Horizontal: State, District, County, etc. 9. Subject Matter Jurisdiction (§1331fed ?: competency/§1332: diversity)/Removal(§1441-1452)Supplemental Jurisdiction (§1367) (fed and state claims) 10. Personal Jurisdiction a. Venue o 1391: event geography—where event occurred or party geography—where ∆ are located (DP inquiry) b. Service—R5
GRACE Subj-Matter Personal Juris Venue Service Choice of Law
11. Choice of Law-Erie Doctrine (fed cts take state substantive law, therefore matters where locate suit (substantive and procedural—fed/state) (const, stat, reg, CL) · Rules: FRAP; FRCP: Supreme Court, FRE, Fed Rules of Criminal Procedure; 11th Circuit Rules; Southern District of Florida; Chambers Rules; Administrative Orders · Conflicts between the different rules—Intramural Conflicts · Procedural v. Substantive; Fed v. State; State by State · Double Forum shopping: file and move (∆ or ∏ can do it) 12. Alternative Dispute Resolution · Arbitration · Negotiation · Mediation—has become parceled with the local districts 13. Rule 16 (Pre-trial Conferences): Sanction rules: R11, Inherent powers, 1927, R37, equitable estoppel, R26) 14. Discovery (Formal fact finding: depositions, interrogatories, etc.) 15. Pre-trial Motions: R12/R56/65 (Rule 12b6: limited to pleadings, 56: motion is supported by factual allegations outside of pleadings, 11: served) 16. Trial: opening/direct/etc are doctrinally-regulated · Bench · Jury o Need to establish that the claims existed at 18th century CL a. Theory b. Theme 17. Trial Motions—Judgments as a Matter of Law—Juryà R50a R50b BenchàR52 18. Post-Trial Motions R59/R61/R50/52/60/Motions for reconsideration/Motions for rehearing/Motions for rehearing en banc 19. Appeals-issues/claims (§1291/§1292/§1651) · core doctrine—doctrine of finality: 1291: allows appeals for a final decision · exceptions to 1291: 1292 interlocutory appeal from injunctions · *an early move has ramifications on appeal—decision might be made on the law of the case and could have subsequent effects on future litigation · §1292 allows interlocutory appeals for Injunctions (TRO, Preliminary, Permanent) 20. Judgments-issues/claims · Preliminary proceedings might become law of the case—binding on remedy and order · Orders—not judgments; must be entered · Orders/judgments are different from opinions · Judgments entered prior to 1291 · See Wilks for impermissible collateral attacks
Defensive Litigation Continuum 1441àR11àR12b1-7àR12càR12eàR12fàR56à TrialàR50aàR50b/R59à1291à Provisional Remedies (Can be remedial R57 and R65)
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