Some first-year students find Civil Procedure one of the easiest first-year courses, ever, and other students never quite understand the subject area, and struggle just to pass.
I understand why some think it is a breeze and others think it is a severe windstorm.
As strange as this might seem, some folk just don't get excited about Civ. Pro. It is not the substance of the law. It is "just" procedure. Procedure is like legal writing. It is so important. You cannot play the game (go to trial, etc.) if you cannot pay the price of admission (knowledge of the rules). And, your opponent will (and, should) do everything to make certain that you don't even stand in line to get a ticket. Your opponent wants to do everything possible to make certain that the court does not even hear what you have to say. Opposing counsel wants to riddle your case with many deficiency bullets. The more procedural gaps your opponent can poke in your case, the longer it will take for you to go to trial, and those procedural gaps will weigh on matters of your competency regarding the substantive case (with the judge). Yes, I know it should not, but it should. If you cannot get into to court, what are you going to do when it's time to play?
So, it really is in your best interest to get a tight handle on civil procedure.
Okay!
A code based examination: code based examinations are not as easy on the mind as often thought to be. As I mentioned in an earlier post, too many of us think that open book means easy A. You could not be farther from the truth. A code based, open book test, is hard on a student's organizational skills. It requires that an additional apparatus (the "code" itself) be present during the examination. So, instead of pen and paper and exam stapled together, or fingers and keyboard and exam stapled together, you now have that named above and a 20 to 30 page outline somewhere on the desk. Three items are not five. Different. An open book, code based test requires you to take the same three hour examination with the five pieces, as you do with criminal law (no book there, but still a three hour testing situation).
The second problem is the flipping - of pages, that is. I can hear the sound of everyone turning pages looking for the answer, when the ANSWER should be in your head. An open book test sounds like a Xerox machine convention. The deafening noise of the paper turning takes on the systematic motion of a machine churning out copies.
Then there is the sadness (the big, tear drop stain, sadness) of those who fail to complete the last question because they spent a good deal of time on the first two questions.
Too much looking back and forth caused a lot of problems later on in the exam.
If you know the law, you should inherently know the answer. I'm serious. You should know whether the motion will be granted or denied, or whether plaintiff can bring the lawsuit in the jurisdiction named in the question, or whether the defendant has the right to move the plaintiff's lawsuit.
A code based exam is no different than any other course and its exam. You are looking through the code to find the code section number, not to determine whether a motion should be granted or denied. You know the law (or, do you)? You know the answer. Yes, you do. You are looking at the code for the section number. I mean who wants to be in a final examination (with the code in tow) and cannot include the basis for the answer on the exam.
That's kind of embarrassing.
fyi: Where is your sheet of paper with the list of the code sections on it (you know, the sheet of paper that includes a matching reference to the area of law the code section # identifies)?
Just keep that part in mind.
Sometimes we blow a question because we do not understand what is being asked of us. Some of us cannot determine whether the professor is asking a question regarding subject matter jurisdiction or personal jurisdiction. I think if many first-year people could figure out what's being asked (from them in the question), then that student could pin down what she is supposed to think about in order to answer the question.
Let's talk a little about subject matter jurisdiction, first.
The United States Constitution is the director of practically every concept and/or rule you have studied in Civil Procedure.
Subject Matter Jurisdiction is all about whether a particular court is the right court to hear a matter. Now "hear a matter," should actually translate to - - is this court "qualified" to make a decision regarding this matter. Article III of the United States Constitution discusses subject matter jurisdiction of the United States Supreme Court and there is some general discussion regarding lower courts in Article III, as well. Article III discusses the type of jurisdiction the U.S. Supreme Court has when a case or controversy comes before it.
Now, if the U.S. Supreme Court does not meet the criteria set forth in Article III, then the Court cannot hear that claim. This "inability to hear a claim, piece" also applies to other federal and state courts, and other administrative agencies and tribunals across the United States. However, it all started with Article III and what the top court in the land could and could not hear.
Think of it in the simplest of terms: bankruptcy court judges are good at bankruptcy matters because that is what they are trained to do (that is also what Congress decided in Article I of the United States Constitution). Would you want a bankruptcy judge to make a decision on the custody of your children or the amount of alimony you are required to pay in a divorce action? No, that is not this court's level of expertise. The bankruptcy judge would be crossing over into the territory of the family court judge. It would violate the U.S. Constitution if banruptcy judges could hear the subject matter of another court. It would be unconstitutional to make a decision regarding a person's family law claim when you only know about Chapter 7, 11, and 13 bankruptcy matters. There's a separation of powers going on throughout the various courts in our United States and a court must stay on its side of the road for more reasons other than a particular judge or court is not an expert in another area of law. I think this explanation will work for now.
Think about it. That's a reason why subject matter jurisdiction can be challenged at any time. It makes sense to be able to bring up a challenge if a court has made decisions on issues when that court is not "subject matter" qualified to make those decisions. Do you want the car mechanic to make your birthday cake? Don't you want to say, "whoa, buddy," at any time, just to be certain that the person making the cake is actually qualified to do so. Once the car guy has made the "oil laden" cake, you are stuck with it. Just like you could be stuck with a decision from the wrong court.
Then you are stuck with another procedural issue - - res judicata - - issue preclusion -- claim preclusion -- bar and merger.
This is not what you want and it will not help you.
I'm coming back in a few hours for a little talk about personal jurisdiction.
I know some of you have civil procedure exams next Monday or Tuesday.
This post is a simple explanation about sub-issues that I hope will provide you with a few, "I get it," moments.
Prof. Smith
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