- Trad'al C/L
- Judge is neutral & not active
- Atty's R active & parties have autonomous
rts 2 dec.
- Atty & parties competent
- Fairness better than eff.
- Jud'al activism bad b/c comes @ expense of atty
/ party autonomy
- Moderate Case Mgmt View
- Judges must become more involved 2 focus issues
- Lawsuits 2 big so should trip down @ pretrial
- Adversarial sys. not sacred
- Systemic int., not case by case justice
- Judges not driven by $
- Extreme Case Mgmt View
- Judge is only thing btwn abuse & soc.
- Substantive rts out of hand b/c of proced'al
- Early Jud'al Mgmt Lwr Cases But Incr. Cost
- Accelerated Discov. Does Same W/o Incr'ing Cost
- Pretrial Conf's: Rule 16
- Ct can facilitate settlement
- Ct can take approp. axn 2 settle & use spec.
proced. 2 assist
- Judges Can Sanction if Fail 2 Settle
- Sanction against party failing 2 partic. in good
faith 4 pretrial conf. / settlement disc.
- Activist view that better 2 settle than try b/c
no justice in trial
- Skeptical view is indiv. b/c research not show
settlement by jud'al encouragement
- Abstentionist view that settlement is bad b/c
- Jgmt is more final
- Settlement is secretive & has inequalities
- Judge should enforce law, not incr. priv. int.'s
- Types of Sanction Rules
- Rule 11: Atty's Sig. on Ct. Doc's
- Not apply 2 discov.
- Good faith & rsbl inq. 4 ct doc's
- Rule 16)f: Pretrial Conf.
- By party motion / sua sponte
- Sanction 4 failing 2 obey order / no appearance
2 conf. in good faith
- Rule 26)g: Atty's Sig. on Discov. Doc.
- By party motion / sua sponte
- If no subst'l justific. & certific. made
in viol. of rule
- Rule 37)b: Motion 2 Compel
- Rule 41)b: Dismissal Invol.
- On merits & prejud.
- If P fails 2 prosec. / comply w/rules, D may
move 4 dismissal
- Counsel's Liab. 27 USC § 1927
- Atty pers'ly pay 4 excess cost & fee if multiply
prcg unrsbly & vexatiously
- Contempt Pwr of Ct: 28 USC § 401)3
- Fine / imprison @ discretion 4 disobedient /
resist lawful writ
- Criminal contempt when
- Contemnor knows the order that's clear &
- Contemnor wilfully disobeys
- Ct's Inherent Auth.
- Atty must obey ct's orders even if seem illegal
- Proced. of Sanction
- Least Severe Sanction Adeq. 2 Accomplish Intended
- Mild Sanction
- Cost shifting
- Deny fees / expenses
- Remedial axn
- Grant / deny X
- Demotion / removal of atty / party
- Enjoin party from starting
- Precl., waiver / strike
- Vacate jgmt
- Suspend / disbar
- Refer 4 possible crim. prosec.
- Magistrates (EXAM)
- Stty'ry Pwr 4 Mag's: 28 USC § 631
- Dist ct. appt's
- Must have been @ bar @ least 5 yrs. & competent
- Not rel'ed by blood / marriage 2 appt'ing judge
- No mag's over 70 yrs. old
- Only serve 8 yrs. as mag.
- Remove 4 incomptency, misconduct, neglect, /
- May act like dist ct's in findings & det's
- Mag. Can Conduct Hrg's
- Can conduct hrg's & submit findings of fact
& rec. 4 disposition
- But can't 4 posttrial relief of crim. offense
& prisoner's petitions
- Can conduct hrg's of dispositive motions 2
- Mag. May Conduct Prcg's of Trial
- Can do so by consent 4 jury / nonjury civil matter
- Appealing Mag. Dec's
- To approp. ct. of appeals
- Parties can consent 2 appeal 2 dist. ct. 4 appeal
- Mag. Det's Pretrial Matters Only
- Can't hear dispositive matters
- Can't hear post-trial matters
- Dispositive v. Nondispositive
- Mag. can hear & det. such pretrial issues
- Dist. ct. limited in rev. by stand. of clearly
err. / contrary 2 law
- Prelim. & final pretrial conf.
- Status conf. & settlement conf.
- Motions 2
- Postpone / expedite trial
- Dismiss w/leave 2 amend
- Sever / consolidate
- Set aside default jgmt
- Add parties
- File 3rd party complaint
- Extend X / amend pleadings
- Substitute counsel
- Prep. of class axn
- Inadm. evid.
- Not allowing W 2 testify
- Mag. can only make findings & rec. but can't
- Parties' consent is exception
- Once consent, waived rt. 2 dist. judge &
- Dist. ct. makes de novo det. b/c
- Article 3 creates assumption of Const'al rt.
- S /P that jud. must B indep. 4 balance of pwr
so perm. & compensation of dist. ct. not created by stt. is
- De novo det. is when judge makes final dec.,
not de novo hrg
- Jgmt on pleadings
- Sum jgmt
- Suppress evid. of crim.
- Dismiss class axn
- Dismiss 4 failure 2 state claim
- Invol. Dismiss
- Post-trial matters
- Anything else that has compl. effect of being
- Rule 53
- Party pays 4 compensation
- Exception 2 refer 2 master, not gen. rule 4
- Complex matter if jury trial
- Exceptional condition if nonjury
- Parties' consent
- Masters report on findings & rec.
- Master's Role
- Pretrial matters like discov.
- Settlement negotiation
- Decree implementation
- Platoon Sys.: Lead Counsel Appt'ed by Ct
- Desig. Lead Counsel
- Ct should check it's proper & has auth.
- Check that not limit client's int.
Atty's Fees (EXAM)
- Amer. Rule
- Each party bears own cost unless auth. 2 shift
- Dif. from Eng. Rule of winner recov'ing atty's
fees from losers
- Purpose 2 allow meritorious suits 2 go forward
- C /L Exceptions
- Common fund
- Class axn damage suits where named P gets $ by
- Consolidate cases / create common fund 2 pay
- D bears part of P's expenses like jt. doc. depository
- Bad faith in litig.
- Ct has inherent pwr 2 shift atty fee if party
is vexatious / bad faith
- Priv. Atty Gen. (no longer exception)
- Cts created in 1970's 4 priv. parties litig'ing
4 pub. good
- But Sup ct struck down so only allow as if stt's
- Stt'ry Exceptions
- Recov. treble damage & atty's fee 4 prevailing
- Ct's discretion 2 w/hold atty fee if P misbehaves
- Civil rts
- Prevailing party may recov. atty's fees by 1964
Civil Rts Act
- If P prevails, then no bad faith reqt
- If D prevails, est. P acted in bad faith during
- Litig. Misconduct: § 1927
- Atty pers'ly pay 4 opponent's atty fee 4 multiplying
litig. frivolously / vexatiously
- Lodestar Approach 2 Det. Atty Fee
- Rsbl Fee 4 Compl'ly Prevailing Party
- Start w/ (# of hrs rsbly expended) (rsbl hr'ly
- MKt rate payment of atty is presumtively rsbl
- Obj. portion of test
- Adjust up / down based on other consid. / multiplier
- Results obtained is most critical factor
- X & labor req'ed
- Novelty & difficulty of quest's
- Skill req'ed
- Precl. of empl. by accepting the case
- Customary fee
- Conting. fee / not
- X limit by client / circ.
- Undesirability of case
- Nat. & length of prof'l rel. w/client
- Award in similar cases
- Not supp'ed 2 B precise rule
- Fee 4 Partially Prevailing Party
- Segregate claims lost from claims prevailed if
- If can't seg., then consid.
- P's level of success +
- Fee award incl'ing X on lost claims is consistent
w/overall results obtained
- If extraord. results, then may enhance based
on multiplier factors
- Challenges 2 Lodestar Approach
- Disadv's 2 Lodestar
- Consumes jud'al X
- Delays recov. 2 P's
- Discourages early settlement
- Not really obj.
- Percentage of Recov. as Alt.
- Set % of atty fee early on
- Adjust up / down based on extraord. circ's
- Less X
- Settle sooner
- Some get more / less than really deserve
- Incentive not 2 do as much work
- Might incr. total recov.
- If more than 1 firm involved, do Lodestar anyway
- Can't use if settle 4 other than cash
- Hybrid Approach
- Start w/Lodestar of (# of hrs rsbly expended)
(rsbl hr'ly rate) + up / down by factors
- Then % of recov. applied so adj. up / down if
Lodestar is off from % of recov.
- Ct's Broad Discretion 4 Atty's Fee
- Discretion Over
- Choice of method of calc'ing
- What's rsbl
This material is copyrighted by the author. Use of the material
for profit is expressly prohibited without the written
permission from the author.
Ms. Haeji Hong
May 4, 1998
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