Pleading, Joinder and Discovery: Cases and Materials
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Description
This book, which covers all of the stages of litigation before trial, is based upon the authors’ Cases and Materials on Civil Procedure. Although the full-year first-year course in civil procedure has gained in popularity, many law schools find advantageous the presentation of pleading and related pretrial matters in a separate course. The pleading course is sometimes a first-year offering designed to acquaint new law students with the basic aspects of procedure while saving trials and appeals for later consideration in a more practice-oriented setting; in other schools pleading is reserved for seniors to take advantage of their more fully-developed substantive-law background. We believe that this book will fit either type of course in that its approach is suitable for first year students while its contents will challenge even seniors. The first chapter sets forth a basic, textual statement of a procedural system's framework, without which an understanding of any particular part of the system is difficult, if not impossible. This initial discussion defines those procedural terms necessary for comprehending legal opinions, whether they be of a procedural or substantive character. Although this discussion may be unnecessary in an advanced course, we believe it is an important function of any procedure course that forms part of the first-year curriculum. The textual analysis, which can be assigned for study with little or no class discussion, is followed by a number of illustrative cases designed to raise the basic problems with which the procedure before trial is concerned. An effort has been made to select cases that can be handled with relative dispatch so that the introduction does not become a de facto study of the entire course. In general, Chapter One is intended to let the student form some idea as to the nature of the litigation “forest” before attempting to make him master of any of its “trees.” A course that deals with any aspect of civil procedure must involve some knowledge of personal jurisdiction and jurisdiction over the subject matter. We have felt it necessary then to offer materials from which this knowledge can be gained, although the coverage is considerably less extensive than that in our larger book and most of the material on the jurisdiction of the federal courts that appears there has been excised. Because students using this book frequently will have derived knowledge of jurisdiction in other courses, we have been faced with the question whether these materials should be relegated to an appendix. Our decision has been to include them at that point at which we believe they are best taught if they are to be taught in the course at all; on the other hand, the chapter may be skipped entirely without disturbing the continuity of the book. We also have treated in this way another tangential area, which is essential to the understanding of many questions of procedure before trial-the problem of ascertaining the applicable law. Much of this material is presented in a textual note, because we recognize how little time can be devoted to this topic in a course largely devoted to pleading, joinder, and discovery. We have concluded that to omit a plenary section on common-law pleading, the forms of action, equity, and the nineteenth century reforms would only lead to the introduction of this material in driblets by lecture during the study of modern pleading and other subjects with no substantial saving in time and probably at a cost in comprehension. Although we believe history is invaluable to the study of modern procedure, however, the modern pleading chapter has been planned as a choate whole, and does not require the coverage of the earlier background chapter. The treatment of parties has been divided between Chapter Six and Chapter Eleven. The problems of proper parties, impleader, joinder of claims, and counterclaims are considered together immediately after pleading, because they are an indispensable part of the pretrial process of clarifying the issues and readying the case for disposition. The procedures relevant to more complex litigation have been split off, to avoid a needlessly long interruption in the chronological development of the course. Our primary purpose, as in our larger book, has been to produce a device for teaching rather than a tool for research. We have looked for cases in which the facts are interesting, in which the conflicting policies seem to be in equipoise, or in which the context has extrinsic fascination, rather than for cases whose opinions offer tight little monographs on various aspects of procedure. The notes and questions that follow nearly every principal case have been designed for the most part to encourage deeper analysis of the problems raised in the principal cases rather than to fill the student with additional detail. At the same time, we have tried to provide sufficient and selective references to secondary sources for the student who wishes to look further. We have not aimed at a “hard” book. Civil procedure is sufficiently mysterious to law students that its ability to challenge analysis survives best when presented in a clear and simple environment. The danger is not of patronizing students, but of losing them. We have not concentrated on the law of any one jurisdiction and in general, the book proceeds on a comparative basis. There is, however, substantial emphasis on the operation of the Federal Rules of Civil Procedure, which have served as a model and focal point for serious discussion and implementation of procedural reform in a large majority of the states. The materials in this volume refer to and are augmented by the Supplement prepared for our larger book, which contains not only the federal statutes and rules governing procedure, but also comparative state provisions. In some cases other materials, such as notes of Advisory Committees, also are included. Thus at a glance the student is able to see the different solutions put forth for particular procedural problems and is induced to explore the reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. The decision to place comparative materials in the Supplement presented us with the difficult question of choice between materials to be kept in the text and those to be put into the Supplement. Our decision, based largely on the calculation that the least confusion would result from placing all of the material in one place, was to put virtually all statutory and rule material in the Supplement where it can be readily located through the Supplement's separate index. Whatever inconvenience may follow from the use of two books seems to us more than compensated by presenting this material in a form in which it can be studied side by side with the cases themselves. Included in the Supplement is an illustrative problem, showing how a case develops in practice and samples of the documents that might actually have formed a portion of the record. We have hoped in this way to reduce the extent to which a student frequently finds procedural material maddeningly abstract. Although this problem was prepared to cover the entire range of litigation, it proceeds in chronological order, so that those portions of the problem relating to litigation before trial may be identified easily. It is important to note that the documents accompanying the problem are not designed as models to be emulated. To the contrary, they often contain defects intended to induce the student to criticize them in light of knowledge he has obtained from the cases and classroom discussion. The cases and excerpts from other materials obviously have been extensively edited in order to shorten them and clarify issues for discussion. In all cases we have provided the reader with a sufficient reference to enable him to consult the original source if he is so motivated. With regard to footnotes: the same numbering appears in the casebook as appears in the original source; editors' footnotes are indicated by letters.
Publication Date
1968
Recommended Citation
Cound, John J.; Friedenthal, Jack H.; and Miller, Arthur R., "Pleading, Joinder and Discovery: Cases and Materials" (1968). Faculty Books & Edited Works. 486.
https://gretchen.law.nyu.edu/fac-books-edited-works/486
