Having taught Civil Procedure for ten years now, I’ve decided to take advantage of the H2O open casebook platform and “mix” my own textbook for use at the Peking University School of Transnational Law. This is, I hope, much less work than actually writing one from scratch. For starters, Glenn Cohen’s text is available as a source and a model.
Notwithstanding that I’m no one’s idea of a Civ Pro maven, I have my own thoughts about how it ought to be taught and thus about how the book ought to be structured. Although I was a litigation partner at a couple of fancy schmancy litigation firms back in the day, I discovered when I started teaching that there was an awful lot of Civ Pro doctrine that I knew all too little about. As time has gone on, however, I’ve come to the opinion that the textbooks also include all too little about what mattered in practice. Beyond that, as I teach almost exclusively to non-US nationals who will never themselves be in a US litigation practice, there are issues of focus and emphasis that matter.
One big beef with the existing Civ Pro books – and I am still surveying what’s out there, even though cost makes actually buying 150 copies of any of them for our incoming class out of the question – is that they don’t engage deeply enough with what in practice seemed to be the two most important elements of the Civ Pro process.
The first is that litigators are, first and foremost, lawyers, and the role of being a lawyer matters centrally to the Civ Pro process. There are ethical constraints that will control choices, and without understanding how fundamental these are, the rules and the processes on specific matters from pleading to discovery don’t quite make sense. Beyond that, as one considers how litigation fits into the bigger picture, the students need to understand what kind of help lawyers can and should give their clients, which goes way beyond knowing how to spot an Erie issue. At every stage, minimal ethical duties and beyond that one’s idea of what kind of professional one wants to be matter to litigation, and it makes sense to me to embed that fundamentally into any Civ Pro course.
Then there is the overriding issue of using Civ Pro not as a collection of rules, but as tools employed in the context of achieving a strategic goal. No good lawyers of my acquaintance would start right in on litigation without at least considering what other options might achieve the desired result. Civ Pro textbooks present the Civ Pro process as an inexorable march from jurisdiction to pleading to joinder and discovery to motions to trial and to appeal, with ADR an often not quite realized aspect at the end. (To be fair, I’ve taught it just that way myself, following the book.) But, that’s not how good litigators approach it. Whether they represent plaintiffs or defendants, if they are any good they start with a goal in mind, and everything they do works toward that goal. The rules are used to achieve results, with a lot of creativity applied by better lawyers, and not just followed step by step like a recipe for brownies. In line with that, I want to put Civ Pro in a strategic context.
That actually fits pretty well with teaching non-US nationals. While few of my students will end up being US civil litigators, very few of them will be able to ignore US procedure if they have big clients. Strategically, they will need to understand how personal jurisdiction can bring even a wholly foreign company under the sway of the US courts, and how the discovery process and attachment of even temporarily US-based assets can give a real bite to that. As transnational lawyers, much of the rest represents one way a fully developed system can approach issues ranging from joinder to claim preclusion, which they can fit into a comparative context when they move on to their full course in Chinese Civil Procedure. More generally, understanding how US procedure can matter is a first step in understanding the world of legal pluralism in which they all will practice, where the substantive or procedural laws of any one jurisdiction are going to be far from all they need to think about.
As I go forward, I plan to post on issues I encounter here. Some of those issues will be about how to use the rather wonderful but apparently underutilized H2O platform; others will be somewhat more substantive thoughts about what I think belongs in a Civ Pro course and where it belongs.
My thinking on the substantive issues will be somewhat idiosyncratic. One of the virtues of mixing your own textbook is that you can vary freely from the traditional sequence of coverage, as well as adding new materials not included in the average text, both of which I think I might do. Right now I’m thinking about starting with the Preamble from the Model Rules of Professional Responsibility, so as to frame it all in the context of professional behavior and identity. Because the US is a foreign culture for my students, I then expect to address, as I have in prior years, issues related to cultural context, the history of the US, and the basic structure of US government. These are all things that might not be necessary when teaching US students, but a good Chinese student might know about as much about the US Revolution or how states function in a federal system as a good US student knows about the Yongle emperor or how residential hukou works in China. Once the table is set, the plan is to move directly to ADR, because in my experience that’s a first stage consideration in any real dispute – do we need to go to court, or can we talk this out or otherwise resolve it in a less formal way? When we get to state-sponsored litigation venues (after a brief comparison of civil law and common law approaches), I plan to start not with jurisdictional issues, but with remedies, because if you are thinking strategically what you hope to attain is the first and most important question. Related to that will be a preliminary discussion of enforcement of judgements, and a quick overview of when you get to pursue an appeal. In my opinion and experience, all of that is central to understanding one’s strategic options, and so it seems useful to frame the whole course right from the start in light of what the goals of litigation might be. These may not be the first issues addressed when resolving an appeal, but they are usually among the first issues addressed when starting into litigation.
Once we are through all that, my goal is to start in on personal jurisdiction and notice, which fit in the time I have available in the fall semester, and which are important issues for foreign nationals. I’m still sorting out how to do that. Personal jurisdiction is difficult for everyone these days – not least the justices of the US Supreme Court – which makes it a hard place to start. I’ve wondered about starting with the narrow issue of service of process under Rule 4, which provides a segue to whether the person being served is someone the court has power over. I’m still sorting that out.
My goal in these blog posts is, first, to write out some of the issues and hence understand them better myself. My second and bigger goal is to get feedback from some of my betters who might frequent this site. I’m hoping you can weigh in with suggestions and resources and corrections as the process goes along.
As is true with all texts created on the H2O site, whatever I create will be available for others, no charge, on an open source basis, so there is the hope that any help you give me will benefit not just me but others.
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