Civil Procedure syllabus (Fall 2023)

CIVIL PROCEDURE SYLLABUS (Fall 2023)

Civil Procedure, Fall 2023

Professor Ira Steven Nathenson

St. Thomas University College of Law

Section 1

Email: inathenson@stu.edu
Phone: 305-474-2454
Homepage: https://www.nathenson.org/
Course page: https://www.nathenson.org/courses/civpro/
Assignments page: https://www.nathenson.org/courses/civpro/assignments
Class time & room: Tues. & Thurs. 1:30-3:30PM, Room 102
Office hours:  

This week’s office hours Appointment sign-up page (for STU students; otherwise, email me)

ABOUT ME

I teach Civil Procedure, Trademarks, Innovations (Patents), seminars, and other courses. I’m also the director of our IP certificate program. You can find more info about me from my bio on my hompage.

ABOUT CIVIL PROCEDURE

We will study the procedures, principles, and rules that courts in the United States use to resolve civil disputes (not criminal cases). We will focus primarily on federal courts, examining the Federal Rules of Civil Procedure (the “FRCP”), Title 28 of the United States Code (the “Judicial Code”), the United States Constitution, and Supreme Court opinions construing them. Beyond learning procedural law, we will examine strategic, ethical, professional, and economic considerations pertinent to United States civil litigation. We will also study materials and do “skills in context” exercises that allow us to integrate Civil Procedure with your other first-semester doctrinal courses (Torts and Contracts) as well as with your skill studies (Legal Writing).

COURSE WEBSITE AND ASSIGNMENTS

Assignments and course-related materials are posted to the course website at Nathenson.org. In addition the syllabus and assignments, this site offers extensive Civil Procedure study resources including handouts, problem sets, flowcharts, study questions, past essay exams, practice essays, and much more. (See links below for examples.) I also run a YouTube channel with Civil Procedure videos.

BOOKS

Required books, supplements, and online resources

  1. Casebook (required): Joseph W. Glannon, Andrew M. Perlman, Peter Raven-Hansen, Civil Procedure: A Coursebook (Fourth Edition) (Aspen Publishers 2021). Make sure to purchase the correct edition. As noted below, students may choose between the print/digital and digital-only editions (though I will strongly encourage students to obtain a print edition that includes a digital version of the casebook along with any available electronic study materials). Aspens suggests the bundle with ISBN 9798889066675. See https://www.aspenpublishing.com/Bundle-Glannon-CivPro4e-2023SuppAccess for details.
  2. Statutory supplement (required): You’ll need a 2023 statutory/rule supplement. The bundle noted above includes a digital version of the 2023 statutory supplement.

Suggested secondary materials, available for free via STU Digital Library

  1. Multiple-choice practice: William Janssen & Steven Baicker-McKee, Mastering Multiple Choice for Federal Civil Procedure (West Academic most current ed.). You can also get this freely (click here) through the Law School Digital library (click here) and the West Academic study aids library. Your STU login is required.
  2. Hornbook with examples: Joseph W. Glannon, Civil Procedure: Examples & Explanations (Wolters Kluwer use most current ed.). You can purchase this book but you can also get this freely (click here) through the Law School Digital library (click here) and the Aspen Publishing study library. Your STU login is required.

Read this carefully: should you use print or electronic books?

Studies show that students tend to read with more depth and retention when working with paper books rather than eBooks. And in Civil Procedure, a student needs to switch deftly between their casebook, their briefs, their notes, and their statute book. Doing so is difficult to do when all these materials are on one screen and a student is not able to switch quickly between materials. More fundamentally, people tend to read in a cursory fashion on a screen, skimming rather than engaging. For these reasons, I have traditionally required students to use the paper editions of their casebook and statute book in class.

Having said that, I’m also respectful of modern realities: that the lawyers of today need to be computer-literate, and that eBooks are becoming increasingly common in undergraduate curricula.

Accordingly, students this year can choose whether to purchase the paper edition of the casebook and statute book, or work solely with the digital editions. Information on obtaining these books is contained in the next section. But before you make your decision, consider the following:

  • Best of both worlds. If you want the best of both worlds, buy a print edition that the print book as well as digital materials. This will allow you to develop your own study skills without having invested in a set of materials that may turn out to be ineffective for you.
  • Whether print or digital, annotate.
    • Engage and annotate. As noted, law students are expected to read in depth and to engage with their materials. A paper book is easy to highlight and annotate, a digital text less so. Digital casebooks do have annotation tools, and if you rely on such texts then you must engage with those texts. Thus, as I will often say in class, don’t just read the materials. Engage with them, digest them. Doing so also helpfully slows down your reading and forces you to engage in more depth.
    • Spoiler alert: whether you use a printed book or eBook, I will come up to students and ask to see what they’ve done with their books, briefs, and statutes. An unmarked book is likely unread, unloved, and not understood. Thus, regardless of whether you choose print or digital, I expect you to do your own briefs and to annotate your readings and at times will want to see it myself.
  • Master your print or digital environment.
    • Be organized and intentional. If you use print, then be organized. Bring your casebook and statute book to every class. Also bring your briefs and notes. Make sure you set up your in-class workspace so that you can deftly switch between materials, as the books, briefs, and notes are all part of an integrated classroom learning experience. For example, cases discuss rules and statutes, and you’ll need them side-by-side to follow the discussion.
    • If you use digital-only, I expect you to do the very same thing and your obligation of digital competency mandates that you are able to switch competently between materials.
      • While in class, you’ll need to switch between materials often. And I will often ask students what page or paragraph contains the “rule” that governs a hypothetical. Students need to be able to “pinpoint cite,” by referring to the page, paragraph, and language. It is no excuse to say “Sorry, I don’t have that on my screen.” 
      • Thus, working from a device is no excuse for not being able to work with your notes, brief, casebook, and statutes. You’ll need to have all loaded and develop the skill to switch back and forth as needed and without thinking, just like you need to be able to pay attention to gas, steering, brakes, and mirrors when you drive a car.
      • Don’t forget: you are training to be a lawyer, and your obligations of preparation and performance as a student in my class remain the same, whether using print or digital. This means becoming adept, among other things, at annotating electronic materials, switching between documents or screens, and searching through documents at a fast pace. Remember, your printed casebook classmates will be able to flip to page “X” in seconds, and those using a digital casebook need to be able to do the same thing on screen. A judge won’t wait for you to find materials in a digital document, and neither will your classmates and I.
      • Spoiler alert: Use two screens, a laptop and a tablet to increase your screen real estate. Also consider using a device with a stylus to take notes by hand, which will slow you down and make you more of an engaged participant and less of a stenographer.
  • Do not be penny-wise. If you choose digital, do so because you know you will be able to work effectively in that environment, and that you are willing to engage and interact with the materials in a way that maximizes the effectiveness of your education. Do not make the choice based on saving a few dollars. First, a legal education is an expensive and significant life-event undertaking, so your choices should be based on what is the best tool for your learning. Second, you can purchase a print edition that includes the digital materials anyway, so you can always experiment and develop your skills in case you are not sure if you can yet master the intensity of engagement required for studying complex legal materials.
  • Don’t worry about exams. All exams (midterm and final) will be closed-book (with laptops permitted for essay writing, subject to use of STU-approved software), so your choice of printed versus electronic casebook will have no bearing on any exam.

GRADING

Midterm exam; other assessments.

There will be a closed-book midterm, which will constitute 10% of your course grade. Laptops will be permitted for answering midterm essay questions, subject to law school policy as detailed in the Student Handbook. Other assessments may be done over the course of the semester. Such assessments, if any, may be ungraded, or constitute anywhere up to an additional 5% of your course grade. In my 1L class, participation is expected but it is not scored or graded.

End-of-semester exam.

The remainder of your grade will be based on a closed-book final examination administered on an anonymous basis at the conclusion of the semester. Laptops will be permitted for answering essay questions, subject to law school policy as detailed in the Student Handbook.

LEARNING OUTCOMES, METHODOLOGIES, AND ASSESSMENT

Outcomes and methodologies

Learning outcomes refers to skills, concepts, and other matters I want you to learn in our year-long course. Learning methodologies are the techniques we will use to learn these matters. St. Thomas Law lists our institutional learning outcomes here.

Learning Outcomes (the goal)

 Learning Methodologies (the means)
Civil Procedure law and concepts (STU outcomes # 1, 2, 5, 6) : Examples include subject-matter jurisdiction, personal jurisdiction, venue, notice, pleadings, joinder and supplemental jurisdiction, discovery, dispositive motions, trial, and preclusion. See assignments.  Reading, briefing, marking up, and discussing cases, rules, statutes and provisions of the Constitution, study questions, problem sets with explanations, and handouts such as tables and flowcharts.
Reading rules and statutes (STU Outcomes # 1-3, 5): Developing skills of reading, marking up, interpreting, and applying statutory materials such as the Federal Rules of Civil Procedure and the United States Code.  Handouts and exercises requiring students to mark up rules and statutes, and to identify components of these materials, such as textual structure, logical connectors, levels of discretion, and more; classroom discussion; problem sets and explanations. See also “Basics of reading and marking up statutes and rules” below.
Briefing and reciting (STU Outcomes # 1-7): Skills attendant to reading and reciting Civil Procedure cases.  In-class recitation and discussion. Regarding briefing, see handout on IFRAC. Regarding reciting, see “Basics of case recitation” below.
Multiple choice skills (STU Outcome # 2): Developing proficiency in multiple-choice assessment. Examinations, any quizzes, optional and possibly required problem sets or lessons.
Essay skills (STU Outcome # 1-5): Mastery of written legal analysis in expanded IRAC format.  Practice essay questions, essay writing workshop, handouts, essay examinations.
Understanding of U.S. court system (STU Outcome # 1): Conceptual and practical understanding of the complexities of the U.S. court system, which has horizontal (fifty state systems) and vertical (dual federal and state systems) components. This understanding should go beyond understanding the systems’ complexities to a readiness to utilize that knowledge in legal practice. Cases and statutes involving subject-matter jurisdiction, exclusive jurisdiction, removal jurisdiction, personal jurisdiction, venue, transfer, and dismissal.
Concepts of procedural Constitutional Law (STU Outcome # 1-3): Constitutional concepts such as Article III jurisdiction, Due Process, federalism, and more. Readings from the Constitution and cases construing the Constitution, along with in-class discussion, problem sets, and study questions.
Understanding of procedural justice (STU Outcome # 1-3, 6, 7): Identifying policies underlying procedural law, such as economy, efficiency, transparency, legitimacy, and participation, and using those policies to understand the law and to make legal arguments. Discussion aimed at understanding why procedural law is created, and how judicial decisions are shaped by choices made between often-competing principles of procedural justice. This is the “why things are the way they are” consideration.
Basics of jurisprudence (STU Outcomes # 1, 3) : Understanding basic principles of law and judging, such as the differences between rules and standards, formalism versus realism, standards of review, and more.  Handouts, class discussion.

DAY-TO-DAY PREPARATION AND RECITATION

Be prepared.

  • Bring your books and briefs. Bring your Casebook and Rules Supplement to class every day along with your notes and your own casebriefs.
  • Do the work. Being prepared includes carefully reading the assigned materials more than once, marking up cases and rules or statutes, briefing assigned cases, and looking up unfamiliar words in a dictionary (legal or otherwise). For unfamiliar legal terms, an online legal dictionary is available at http://dictionary.law.com. Black’s Law Dictionary is also highly recommended. Don’t expect to come to class unprepared and to learn the materials by listening, that’s not how law school works. The only way class time will benefit you is by diligently preparing the materials before class and doing follow-up work after.
  • Read and mark up the rules and statutes. Reading and briefing the cases in the Casebook is not enough. If you have not carefully read and marked up the assigned rules, statutes, or constitutional provisions in your Rules Supplement, you are not prepared.
  • Canned briefs are a big no-no. Don’t bother trying to get through class with canned briefs. Using them is essentially plagiarism because you are required to do your own briefing, and using a canned brief is passing off somebody else’s preparation as your own. Additionally, many canned briefs contain errors, don’t focus on the issues pertinent to our class. Finally, canned briefs never substitute for the educational value of doing the work yourself.
  • How much time is enough? If you do not know if you are preparing enough, a good rule of thumb is that you should spend at least twice as much time preparing before class as you spend in class. In other words, for a two-hour class, you should prepare an absolute minimum of four hours. Difficult or longer assignments will take longer.
  • Reading ahead? Some students like to read ahead but proceed with caution as you can get too far ahead and forget the materials by the time they are discussed in class. So, if you do read ahead, you must re-review the assigned materials immediately prior to relevant class. It is unprofessional to say “I read this a week ago but I forgot what it said.”
  • Day-to-day overlap. If we do not finish the materials assigned for a particular day, you must re-review those materials again for the next class. Along similar lines, you remain responsible for any new materials still posted for the next class unless and I post a revision to the assignments on the website. We are not “behind” until I tell you so expressly.
  • One-shot pass. One time per semester, you may tell me before class begins and I will not cold-call on you. However, if you do not tell me in advance, and I call on you and determine in my sole discretion that you are unprepared, you may be marked as absent. If this happens more than once, I have the sole discretion to lower your final course grade by a half a letter grade.

Be engaged, respectful, and realistic.

  • Accept that confusion is part of learning. Law school is hard, and you should expect to find it difficult. Never feel guilty that you are not yet understanding, or that you are confused. Learned judges and scholars spend entire careers struggling with difficult questions of law; it would be unrealistic of you to expect to immediately “get it,” either. Civil Procedure in particular has a roller-coaster learning curve: some days you feel that you’ve “got” get it, some days you won’t, and yet other days, you will realize that there is more complexity to the things you initially thought you already got. But have faith that these peaks and valleys should head in an upward learning trajectory as you synthesize procedural law, concepts, and skills.
  • Ask questions. For the reasons above, don’t be afraid to ask questions and express opinions. You won’t understand everything right away, and I guarantee that even the most well-prepared students will err while they are new at this. Everyone — even professors — makes mistakes, so challenge me if after reflection you disagree. Part of being an aspiring professional is learning how to respectfully challenge your professors (and later on, your supervising lawyers, clients, judges, and opponents). Before raising your hand, be prepared and reflect on what you are saying. There are never “stupid questions” in my class.
  • Keep tabs on your confusion. For things that you find to be confusing, keep a list of questions. Some of your questions will likely be answered during class. For other questions, raise them in class or in office hours.
  • Come to office hours or seek me out. Make sure you seek out me and your other professors. I enjoy getting to know my students. More importantly, if you are struggling with the materials, please seek me out. I am accessible on campus and online. Don’t ever hesitate to reach out to me. It’s much better to do so early in the semester rather than later.

Finally, be professional.

  • Professionalism starts in law school. I expect the highest degree of professionalism from you toward your classmates and me. Remember, the reputation you earn while in school will follow you through a lifetime of practice. I therefore expect you to treat your College of Law colleagues, professors, and staff with respect, even (and especially) when you disagree with them. As the Florida Bar makes clear: “[t]he essential ingredients of professionalism are character, competence, commitment, and civility.” (Emphasis added.)

CLASSROOM POLICIES

Accommodations.

If any students believe they need, or are entitled to receive, any accommodations due to a disability they should consult with the Assistant Dean for Student Affairs as early as possible. Further information on accommodations can be found at http://www.stu.edu/law/students/disability-accommodations.

Attendance: be there.

Class attendance. Attendance means being in the classroom, on time, and not leaving the classroom without authorization. Moreover, class attendance is mandatory and in accordance with St. Thomas Law’s attendance policy, you may not obtain credit for any course for which you miss more than 20% of the classes. However, I strongly recommend that you do not miss even that many classes. In addition to the assigned materials, anything I say or that we discuss in class is fair game for quizzes and exams. Further, if you are absent more than five times, you will be dropped from the course with a failing grade and will not be allowed to take the final exam. If you anticipate missing more than 20% of any class, you are strongly advised to contact the Assistant Dean of Student Affairs regarding the possibility of withdrawal before it is too late to do so. I do not have the discretion to excuse any absences so please do not ask me to do so.

Sign-in certification.

Sign-in sheet as verification of your presence. If we return to using a traditional sign-in sheet, then it is each student’s responsibility to personally sign the sheet (i.e., to certify their timely presence) during class. Alternatively, I may require use of a QR code displayed in each class. These are the exclusive indicia of your attendance for that day, so do not come to me later and tell me you forgot to sign in, and do not offer to show me your notes as proof that you were in class. Further, be aware that it is a serious violation of the Academic Integrity policy to sign in other people or to have others sign you in. The reason for this goes to the paramount value of honesty, which is one of the most important qualities of an aspiring attorney. In fact, we will study FRCP 11(b) regarding honesty in certification later this academic year.

Punctuality.

Early is on time, on time is late. You should be on campus at least ten minutes before class. That way, you will be in your seat and ready to go the moment class starts. Problems happen to everyone, so plan accordingly. A professional arrives early and never makes excuses. Spoiler alert: late students are particularly apt to receive a cold call.

Leaving the room.

Leaving the room during class. We will usually take a break during each class, so barring a genuine emergency, hold off on classroom exits until there is an appropriate break point for all. Leaving the room during class without an extremely good reason is extremely unprofessional. Do it enough and your presence will be stricken from the attendance sheet for that day. See FRCP 12(f).

Email.

From time to time, course-related announcements (such as new online materials or assignment revisions) will be sent to your official St. Thomas Law email account. My transmission to you of a class-related email shall constitute notice and you are responsible for the information contained in any such transmission, whether you read it or not. Cf. FRCP 4(e), FRCP 5(b)(2)(E). Check your email regularly.

Technology.

Class recordings. Class is highly discussion-based and absent exceptional circumstances, will not be recorded. Neither may you record any portion of class or screenshot any materials without my permission. However, as an exception to that rule, you may take screenshots of display materials during class with your cellphone without prior permission. Recording otherwise requires prior written permission from me.

Laptops and tablets. As you know from the sections above reading digital casebooks, I encourage law students to develop professional digital competency. So does the Florida Bar. Laptops and tablets are therefore permitted. In fact, you might find multiple devices to be useful, such as having one device open for note-taking and another for viewing the casebook or other materials, particularly for students using the digital casebook and interested in developing their professional digital skills. I am also a big believer in the power of a good stylus such as with an iPad or a Surface Pro.

Phones. Cellphones may only be used when I indicate (I use them sometimes to poll the class). Your phone must otherwise be silenced and put away.

Proper use of technology. As the superhero trope goes, with great power . . . well, you know. Use the privilege of classroom technology responsibly and smartly. So don’t abuse my willingness to encourage technology as the privilege is revocable. No screwing around on your computer. I’ll walk around the classroom and kick you out if I find you surfing Amazon or playing Fortnite or the like. Regarding working smartly, don’t be a stenographer (the person who types up every word a witness says at a deposition or trial). Writing down every word is a horrible way to learn as the words will flow from my mouth to your fingers without taking a pit stop at your brain. So another part of being a law student/lawyer is learning how to take intelligent notes. Don’t fall into the trap of writing down every word, as not every word I say is that interesting or important. For that reason, another approach you might take is to take notes by hand and them type them up after class as part of your post-class work.

REVISIONS AND AMENDMENTS

This syllabus sets out policies and guidelines to cover reasonably foreseeable and commonly occurring situations. It does not attempt to cover all possibilities. The syllabus and assignments may be revised as I deem necessary, for any reason, with written notice to you through this website or email.

Drafted 7/28/23; OH added 8/4/23; clarified office hours 8/14/23.