Posts categorized as "civil procedure"

What is mandamus?

Mandamus, or a "writ of mandamus", can mean different things in different contexts. In the US, mandamus usually means an order from a  higher court to prevent a lower court from doing something wrong.  Mandamus is very unusual.

Remember that as a general rule, an appellate court only hears a case after all the proceedings in the lower court are finished.  For example, a federal  appellate court (Circuit Court) will not review what a federal trial court (District Court) did until the District Court trial is complete or until the District Court issues a decision that permanently ends the case, such as by granting summary judgment for one side.

Mandamus is one exception to our general rule.  Let's say a party thinks that a federal trial court has made such a terribly wrong decision and the party requires urgent intervention from an appeals court.  In that case, the party can ask for mandamus from the appellate court.  Some typical requirement for mandamus are:

  1. the party has no other way of getting help (if the appellate court does not issue an order of mandamus the party has no other way to protect its rights);
  2. if the party waits until the case is ready for appeal it will be too late.

Parties seeking mandamus might also argue that the district court keeps repeating the same mistake or that the issue presented is new and important.

Again, mandamus is very unusual.  Where a court exceeds its jurisdiction an appellate court might issue a writ of mandamus.  For example, in one case the First Circuit Court of Appeals held that a federal trial court exceeded its jurisdiction with respect to a lawsuit against judges in Puerto Rico.

A party seeking mandamus should be careful  - - the appellate court will probably not agree that mandamus is appropriate and he'll only  succeed in making the trial court judge unhappy.

Case of the Month: NML Capital v. Republic of Argentina

If you follow the news you may have seen news reports regarding a case in a New York federal court, NML Capital v. Republic of Argentina.   It's a useful case to study for US legal terms, the federal court system, and where politics and the law intersect.  Below is a simplified summary.

The background to the case is that Argentina issued bonds.  You're probably familiar with bonds:  bonds help companies and countries to raise money.  Basically, investors give money now in return for a promise to get paid back with interest later.  

Argentina has a history of defaulting - - failing to pay back investors.  To help encourage people to buy Argentina's bonds Argentina agreed that if there was a legal battle in connection with the bonds that Argentina would litigate in New York federal court.  The reason to litigate in New York is that New York would be perceived as a neutral place to settle any dispute.  Investors might be nervous about litigating against Argentina in Argentina's courts and would be less willing to buy Argentina's bonds.

 So investors bought the bonds but Argentina defaulted.  Argentina told bondholders that they could get back around 30 cents for every dollar.  Many bondholders agreed to this offer.  In the news you will see the bondholders who agreed to this deal called Exchange Bondholders.  Exchange Bondholders means the investors who agreed to accept Argentina's offer.

But not all the investors agreed to accept Argentina's offer.  Other bondholders wanted Argentina to pay what it owed on the bonds.  These bondholders sued in New York federal court (the case is captioned NML Capital Ltd. v. The Republic of Argentina).  Let's call the bondholders who did not accept the deal "plaintiffs".

The federal court ordered Argentina to not pay the Exchange Bondholders unless Argentina also agreed to make payments to the plaintiffs in the court case.  Argentina, among other things, argued that the US federal court could not tell Argentina what to do because Argentina is a sovereign country.

The judge found Argentina to be in contempt because Argentina failed to follow his orders.   The plaintiffs want the judge to impose a penalty of $50,000/day against Argentina.  This creates political friction between the United States and Argentina because it is unusual for a court in one country to impose a penalty against another country. Argentina has asked for support from the United States government (the executive branch) against what it believes to be improper actions by the court (the judicial branch).

Below is a video I uploaded:

 

 

Are expert witnesses paid?

Yes, expert witnesses are usually paid.  Experts are typically hired by one of the parties to a case and are compensated for their time developing their expert opinions.  If fact, if you look at the Federal Rules of Civil Procedure, you will see that experts are required to disclose their compensation.  

In some high profile cases experts can be paid quite a bit for their preparation time.  

 

What is a deposition?

A deposition is where a witness or a party must answer questions under oath before trial.  The deponent's answer are transcribed and today many depositions are videotaped.  Depositions typically take place in a conference room.  The judge is not present.  

Depositions are an important discovery device - - remember, discovery is how parties obtain and share information prior to trial in a civil litigation.   

Depositions are a useful way for lawyers to learn what witnesses will later say at trial.  A witness who contradicts his deposition testimony will come across as unbelievable at trial.   Based on deposition testimony and other evidence acquired during discovery, parties will often move for (and oppose) summary judgment.

Depositions usually take place after the parties exchange documents.  Lawyers can then ask deponents about the documents.  For example, in a business litigation, an executive might be questioned for hours or even days about emails that he sent and received.

 

 

 

What is remand? New Video.

Remand is where a court gives a case back to another court.  If you are studying US law you will typically see a court remand a case back to another court in two situations: (i) after an appeal; (ii) after a case is improperly removed to federal court.  I talked a bit about remand after improper removal in an earlier post.  You will also often see an appellate court remand a case back to a trial court.  For example, if an appellate court thinks that a trial court applies a law incorrectly, the appellate court can remand the case back to the trial court and instruct the court to apply the law correctly.

I uploaded a video on remand:

New Impleader Video

Back in May I posted a short entry on impleader.  Below is a video on impleader that I just uploaded.

 In the federal courts impleader is governed by Rule 14 of the Federal Rules of Civil Procedure.  States also allow impleader.  

Generally speaking, the Federal Rules (and state rules) favor resolving related disputes in a single case to promote efficiency.  Impleader allows a defendant to sue a third party based on the principle that if the defendant is liable to the plaintiff, then this third party is liable to the defendant.  The defendant is now also called a third party plaintiff.  The original plaintiff's lawsuit against the defendant/third party plaintiff and the defendant/third party plaintiff's lawsuit against the third party defendant are resolved in the same case.

Let's say A sues B.  B's insurance policy requires C to reimburse B if B owes money to A.  B can implead C into the case.  B sues C as a third party plaintiff arguing that if B owes any money to A, C must owe money to B.

 

What is exclusive federal subject matter jurisdiction?

When we say subject matter jurisdiction we mean the power of a court to decide a certain type of case.  Federal courts in the United States have the power to decide some types of cases but they do not have subject matter jurisdiction over every type of case in the United States.

U.S. federal courts' subject matter jurisdiction comes from the Constitution and the Congress of the United States.  If you look at Article III of the U.S. Constitution you will see a list of cases in which the federal courts have subject matter jurisdiction.  These cases include, among other things, admiralty cases, patent cases, and cases between two different states (e.g., New York sues New Jersey).  

Some cases can be heard in both state and federal courts.  We can say that the federal and state courts have concurrent jurisdiction over those types of cases.

For some types of cases federal courts have exclusive federal subject matter jurisdiction - - only federal courts can decide these types of cases.  In other words, the cases cannot be heard in state court.   Some examples where federal courts have exclusive subject matter jurisdiction include the types of cases I listed above as well as bankruptcy cases and federal antitrust cases.

 When passing a law, sometimes Congress will specify that federal courts have exclusive subject matter jurisdiction.   For example, if you look at 18 USC 2338 and subsequent sections you will see that Congress established certain laws addressing terrorism and that these cases can only be heard in federal courts.

 

 

What if someone refuses to share information during discovery?

You have probably learned that in the United States courts favor broad discovery.  For example, in federal court parties are required to disclose certain information at the beginning of the case without being asked.  Parties then must meet to create a plan and schedule for discovery.   During discovery parties are able to seek a wide range of information from each other.  

Of course there are controversies.  For example, one party might believe that a document is immune from discovery because the document came from the party's lawyer and contains legal advice.  How can this controversy be settled?

Courts usually encourage parties to settle the argument by discussing the problem and coming up with their own solutions.  If that doesn't work, the parties might meet with a judge or a magistrate  - - a special judge dealing with specific matters, such as discovery - - to resolve the issue.  

Sometimes the party seeking the information will have to make a motion to compel.  A motion is where a judge is asked to do something.  A motion to compel is where a judge is asked to order someone to do something.  For example, in a motion to compel production (disclosure) of a document, the party seeking the document will ask the judge to order the party holding the document to disclose it.  If the motion is granted, the party in possession of the document must provide it to the moving party.  

I uploaded a short video on motions to compel during discovery:

 

Extraterritorial Application of US Law: Liu Meng-Lin v. Siemens AG

As a general rule, US law does not apply outside the territorial jurisdiction of the United States.  A recent decision by the Second Circuit Court of Appeals (Liu Meng-Lin v. Siemens AG) provides a helpful illustration.   As a reminder, the Second Circuit Court of Appeals is a federal appellate court that decides appeals from  Connecticut, New York, and Vermont district courts.   The Second Circuit is particularly influential with respect to securities laws because it hears cases on appeal from New York, including the federal court in Manhattan.

After the 2008 financial crisis Congress passed a law called the Dodd-Frank Act.  Among many other things, the Dodd-Frank Act provides protection for whistleblowers - - persons who report securities law violations by their companies.    The Dodd-Frank Act prohibits companies from retaliating against employees who report certain types of violations of US law.  

The plaintiff in this case sued his former employer, arguing that the company illegally fired him after he internally reported corrupt practices by the company.  He complained that by firing him, the company violated the Dodd-Frank Act's protection for whistleblowers.

But the district court dismissed his case and the Second Circuit affirmed the district court's decision.  Why? The plaintiff was a foreigner (non-US citizen) working for a foreign company and all of the conduct at issue in the case occurred overseas.  Specifically:

  1. The foreign company's allegedly corrupt activity occurred outside the United States (in North Korea and China).
  2. The plaintiff reported the activity overseas.
  3. The allegedly illegal retaliation occurred overseas.

According to the Second Circuit, the only connection to the United States was that the foreign company was listed on the New York Stock Exchange.  The Second Circuit, citing recent Supreme Court decisions, explained that because Congress did not clearly intend whistleblower protection laws to apply extraterritorially, the plaintiff's case must be dismissed.

Here is a video discussing the case:

 

 

 

What is claim preclusion?

You will often see claim preclusion referred to as Res Judicata.

Claim preclusion is what keeps parties from suing each other again after a final judgment on the merits is reached in a civil litigation.   For example, if a plaintiff prevails in a lawsuit against a defendant or loses a case against a defendant in Case A, the plaintiff probably cannot sue the defendant again based on the same events in Case B. Even if the plaintiff sues in a different court or alleges new causes of action, Case B is probably barred by claim preclusion.

 For example, let's say after a car accident Patty sues David for negligence in Case A.   The jury in Case A rules against Patty.  Patty probably can't sue David again based on the car accident.  Even if she sues in a different court or alleges battery instead of negligence, the case is probably barred.

Three things to look for in a case where claim preclusion might apply:

1. Were the same parties involved in a prior litigation?

2. Is the second lawsuit based on the same events as the first lawsuit?

3. Were the causes of action (e.g., negligence) in the second case already litigated in the first case?  Could the causes of action in the second case have been raised in the first case?

If the answers to these questions are "Yes" then claim preclusion probably applies.  

Below is a video on claim preclusion.