Civ Pro 1.1 – Introduction to Key Concepts
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Introduction to Civil Procedure

Welcome to Civil Procedure. Now, the way most Civ Pro classes are taught in your One-L year of law school is through studying cases that have already been decided. I want to do something a bit different. I'm going to pretend that you're already a lawyer and we're going to work on a yet to be decided case together, and through that process, learn about civil procedure. Now, of course, we're still going to look at many of the landmark decisions, just like in a typical One-L class, but I think this way of doing it, the cases will be anchored to something tangible, and it's my hope that they'll therefore be more engaging.

Okay, so let's do this. Let's pretend that you're a brand new associate at the law firm of your dreams, and just as you're sitting down to start your day, your phone rings. You pick it up and it's your friend, Sarah, from college. You can tell something's not right and she explains to you that she's been fired from her job. Now, this is very strange because Sarah has always had excellent performance evaluations, and she's received multiple promotions. But what changed was that about three months ago, she got a new boss, and this guy started criticizing her for non-existent mistakes, even going so far as to making demeaning race-tinged comments about her in front of her colleagues.

So you both suspect that she probably wasn't fired for performance reasons and you think that she might've been fired because of the color of her skin. You assure her that you're going to do everything you can to help, so what do you do? Where do you start? Well fortunately, you paid enough attention in your One-L Civ Pro class to know where to start looking for answers. The first thing we have to decide is whether Sarah's case is a civil matter or if it's a criminal matter.

Nearly all cases fall into one or the other of these two categories, and they're very different from each other.

Civil Disputes

Parties are individuals.

In civil disputes, the parties involved typically are individuals, private citizens, or companies. So maybe you get into a car accident and you guys fight over whose fault it is. Right, or one company claims that another company has breached a contract. The end result of this type of case, a civil case, is usually a judge will order one party to pay on the other party monetary damages, or alternatively, the judge will order one party to either specifically do something for the other party or specifically stop from doing something, refrain from doing something.

Criminal Disputes

Government is a party.

On the other hand in criminal law, one of the parties is always the government. A prosecutor from the government, often a state, city, or county, charges the defendant with an offense against the community, like theft or assault. The victim of the specific attack may be a single person, but the prosecutor acts on behalf of all the people of the county, city, or state. The end result of a criminal case could be something as light as monetary fines, or community service, or jail time, or even in some states, the death penalty.

As of yet, we don't know too much about Sarah's case, but even the little bit of information that we do have is enough for us to make a conclusion that we are squarely in the domain of a civil case. The two parties that dispute is Sarah on the one hand and her company on the other hand, and neither of which is a state actor. That is a very good start. We're not dealing with a criminal case here.

Substantive Laws/Rules

Rights and duties to individuals

Next, we need to figure out what substantive laws apply in this case and distinguish them from the procedural rules that apply as well. Now I know they sound similar and indeed both are laws, but they are very different, and it's important for us to figure out both of them. Substantive rules are rules or laws that govern the rights that we possess and the duties that we owe to each other. For example, laws prohibiting fraud are laws that essentially say that you owe me the duty not to defraud me, and I reciprocally owe you the same.

Similarly, laws against negligence or breach of contract are examples of substantive laws. Now obviously, we're not dealing with fraud. This is a dispute over employment. So the major substantive law that applies here is Title Seven of the Civil Rights Act. This is something you would definitely know if you had taken an employment law class.

Procedural Laws/Rules

Processes by which suit proceeds

On the other hand, procedural rules are rules about how a case makes its way step by step through the court system. For example, how quickly must Sarah bring suit to her former employer? Does she have to do it today? What if she waits a few days? Could she wait a few months, or a few years, or maybe even a few decades before she brings suit? And once she does bring suit, which court in which state will hear her claims, or is this a federal matter? And from her former employer's perspective, how long do they have to prepare a defense? How long do they have to answer any complaints that Sarah might bring against them? These are questions governed by the procedural rules. The go-to source for the procedural rules for any lawyer is a step by step manual called "The Federal Rules of Civil Procedure," which tells us exactly what we need to do to bring this suit to court.


It’s your first week as an associate at the law firm of your dreams. You’ve passed the bar, received the privilege license that makes you official, and collected your initial research assignments from the partner next door.

Then, the phone rings, and it’s your college friend, Sarah. While you’ve been in law school, Sarah’s been working at Goliath Corp., a huge, nationwide company that recruited her for its management track. You can tell something’s wrong, and soon she tells you: her supervisor has fired her out of nowhere.

Sarah’s performance evaluations were always stellar. She received one promotion and was expecting another. But everything changed when the new boss showed up three months ago, criticizing Sarah for non-existent mistakes and making demeaning, race-tinged comments about her in front of colleagues. She knows she wasn’t fired because she failed to do her job.

You realize Goliath Corp. might have fired Sarah because of her race, which means she might have a claim for race discrimination. You assure her you’ll try to help. Then you hang up and wonder what to do next. Fortunately, you paid enough attention in your 1L Civil Procedure class to know where to look for answers. All you remember are the basics, but that’s enough to get started.

First, you need to know if Sarah’s case is civil or criminal. Those two types of cases involve different disputes, different consequences, and (often) different parties.

In a criminal matter, a prosecutor from the government—often a state, city, or county—charges a defendant with an offense against the community like theft or assault. There may be a single victim of a specific attack, but the prosecutor acts on behalf of all the people. Penalties can range from public service to fines to imprisonment or even death.

Civil matters deal mostly with private disputes, like car accidents or breaches of contract. Instead of bringing charges to protect society, a civil plaintiff brings claims to enforce her own rights. Instead of prison, civil defendants might face money damages or a judge’s order to avoid certain conduct (called an injunction).

Because the disputes and the stakes vary so much, courts apply different rules and standards to criminal and civil matters.
Next, you need to distinguish between the substantive law that will define Sarah’s claims and the procedural rules that will determine how her case makes its way through the court.

Substantive law tells us what legal rights we possess and what duties we have to other people. Laws against fraud, negligence, and breach of contract are prime examples.

Procedural law dictates the steps we take to enforce our rights or defend against a claim that we have violated someone else’s rights. The rules that tell you where to sue and what to file are good examples of procedural law.

With that information, you can already reach two important conclusions:
(1) Sarah should bring a civil claim because her dispute is a private matter between her and Goliath Corp. and
(2) The substantive law Goliath Corp. might have violated is Title VII of the Civil Rights Act. You remember from your Employment Law class that this statute defines and prohibits race discrimination.

Now, you need to turn to the procedural side and consult every litigator’s best friend: the step-by-step manual for handling civil lawsuits. In this case, that manual is the Federal Rules of Civil Procedure (or the “Fed. R. Civ. P.”). (We will explain in a later post why the federal rules—and not state ones—apply!)

Since 1934, the Federal Rules of Civil Procedure have made civil practice uniform across federal courts and helped prevent plaintiffs from “forum shopping”—hand-picking a particular court because some unique rule it followed would give them an unfair advantage. As Rule 1 makes clear, the purpose is to “secure the just, speedy, and inexpensive determination of every action and proceeding.” Along with the federal case law that interprets them, the Fed. R. Civ. P. give lawyers plenty of guidance about what to do—and what not to do—before a federal court.

Next time, we’ll dive into the rules and find out how to launch Sarah’s lawsuit. For now, you’d better get back to those research questions the partner assigned you this morning . . .

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