Civil Procedure I

Course Outline for Civil Procedure I (partial)

By Daved Muttart -- exerpts only

This course will introduce students to practical and theoretical issues relating to the conduct of the resolution of private disputes. It will provide a functional grounding in the methods by which private disputes are litigated and to introduce access to justice and alternate dispute resolution issues. The Ontario Courts of Justice Act and Rules of Civil Procedure and the case law which has interpreted them are the primary foci of the course. The resolution of disputes will be examined from the perspective of both complainants and alleged wrongdoers starting the moment clients are first interviewed until their matters have been resolved by mediation, trial, or appeal.

The course is taught via lectures and small groups chaired by the professor. The course runs approximately twelve weeks in the winter term of first year. There are three hours of lectures (one 1 hour block and one 2 hour block) and one small group hour per week. The course is assigned 4.5 credit hours.

Course Texts

Students are required to acquire a current edition of J.J. Carthy et al., Ontario Annual Practice, (Markham, Ont.; Canada Law Book, 2003) which contains the relevant Rules and Statutes. The primary text for the course will be Watson et al., The Civil Litigation Process, Cases and Materials (5th ed.), (Toronto; Emond Montgomery Publications Limited, 1999). This leading text in the area will put the Rules into context. Its overviews, case-law, and academic commentary will serve as a resource for the examination of civil procedure issues. Civil Actions (2003) by M.J. Huberman and K.E.H. Foti (Toronto; Carswell, 2003) will be used to structure demonstrations and practical exercises.

Additional articles, as required, will be distributed through the Material Distribution Centre.

Recommended readings include:

M. Minow, "Politics and Procedure" in D. Kairys (ed.), The Politics of Law: A Progressive Critique (3^rd), (New York; Basic Books, 1998);

W.B. Wendel, Lawyers and Butlers: The Remains of Amoral Ethics, (1995) 9 Gerogetown J. Leg. Ethics 161

Issues

During this course, students will analyze the extent to which the current rules manage conflict with a view to facilitating a reasonably fair decision on the merits by a neutral adjudicator. Issues to be discussed will include:

What procedures do the Rules and relevant Acts mandate?
Do the Rules promote access to justice?
Do the Rules impact differentially depending on class, race or gender?
How effective is civil procedure in achieving its goals?
Are there other, better, ways of resolving disputes?
Who decides what issues are justiciable? Do the Rules play a role in this?
How were the Rules formulated? How are they sustained? How can they be changed?
Does academic commentary play a role in changing civil procedure?
How do issues come to the fore in academe?

Throughout the course, efforts will be made to model good lawyering and professional practice. As the course progresses, students will be progressively challenged to formulate and support their own views as to the effectiveness and propriety of possible actions which might be taken by lawyers in the prosecution of a lawsuit.

Course Schedule

The lecture sections will describe the Rules and relevant statutory provisions in the context of the various stages of a typical lawsuit. A detailed fact situation will be introduced at the beginning of the course to ground the discussion. It will become clear that actions or omissions by counsel at early stages of the lawsuit may affect later stages and even the ultimate outcome. Thus the lectures will put civil procedure in context and provide a jumping off point for deeper analysis.

The focus of the small group sessions will be on discussion. Here the students will analyze, synthesize and evaluate what has been introduced in the lectures and readings with a view to facilitate their own construction of civil procedure. Ultimately they will apply their knowledge via written assignments and a moot court demonstration.

As much as possible, the instructor will collaborate with the students and encourage them to work together to direct their own learning.

This syllabus contains or describes :

Course Goals
The course website: For announcements, instructorís e-mail address and the course ListServe, see the course web-site via MyOsgoode or at http://osgoode.yorku.ca/QuickPlace/DavedMuttart/Main.nsf/. (website pending...)
The Fact Situation to be used throughout the course
The Course Schedule
Detailed Outlines for Weeks 1, 2, 7 and 8
Evaluation and Assessment Plans and Assignments
Outline of sections from the Courts of Justice Act and Rules to be covered

Course Goals

During the course, students will be introduced to the necessary knowledge, will acquire the requisite skills, and where possible, use these skills to perform the following:

Identify and analyze Civil Procedure issues embedded in complex fact patterns,
Use the Rules to take the appropriate steps to solve, in a practical way, the typical problems which arise during a lawsuit,
Outline and manage the process of a lawsuit,
Recognize ethical issues and make appropriate decisions to resolve them. Criteria will include how each choice will make them feel. Students will distinguish between their duties to their clients, the courts and to themselves.
And students will engage in rational debate to formulate and test their judgments as to issues generated during the practice of law with a view to acquiring a commitment to the rule of law as a means to promote justice and fairness.

Civil Procedure I: Overview of Week 1

One-hour Large Class

Administer pre-course quiz to test current position relative to course objectives
Outline structure of course, including course objectives
Describe assignments and how course will be evaluated, promote writing partners and study groups, counsel regarding academic dishonesty
Announce office hours and course web-site
Announce group photo at small group session to facilitate my learning your names
Discuss diversity whether anyone has a disability including learning disability and if so to see me later. Advise of services provided by university.
Lead discussion as to why Civil Procedure might be important
Describe organization of course texts including Courts of Justice Act, The Rules of Civil Procedure and Forms
Introduce Civil Procedure as the form through which disputes are resolved: Not possible to have substance without a form to contain and organize it. For example, not possible to have milk without a bucket, carton, bag, etc.

Two-hour Large Class

This is the beginning of the nuts and bolts of the course. I will start with selected sections of the Courts of Justice Act and use a PowerPoint slide to outline the hierarchy of Courts in Canada. I will then pause to provide a framework of what the Rules and the Judges who use them are trying to accomplish: File management, economy to the system, fairness to the parties. The Ontario Annual Practice will then be examined as to its layout and structure. This should take us to the break.

The lecture will then move onto the Rules. See detailed lecture outline, infra. I will be going fairly quickly here so as to give the students a basic foundational outline which can be utilized for active learning during later lectures. A One-Minute Paper will be administered at the end of the class.

One-hour Small Group

This will be a get-to-know you session which will segue into a discussion about the importance of civil procedure to the students as future lawyers, as citizens and as potential litigants. The course assignments and evaluations will be reviewed. Students will be encouraged to form study groups.

I will photograph the group to facilitate my learning of their names. Shy students will be free to opt out.

Pre-Test for Civil Procedure I

Please briefly answer the following questions:

What is Civil Procedure?
What is a Statement of Claim?
What are Particulars?
What is Discovery?
What types of civil disputes are tried by juries?
Roger, your first client, comes into the office and tells you that Paul punched him in the nose. What do you do?
Is it appropriate to use technical defences to draw out the process of a lawsuit with a view to exhausting the other side?
What do you hope to learn in this course?

Detailed Lecture Outline for First Hour of First Two-Hour Large Class
In order to grab the attention of the students and to engage them in a vicarious experience, I will start off with the following story:
Imagine one morning, far away in the future, you have secured a plum articling job in a tower of glass and steel looking down at the pedestrians scurrying along Bay Street. You are happily working away at a multi-trillion dollar merger and acquisitions file when one of the litigation partners dashes into your office and hands you a file. "I've been called to trial. I need you to handle this. It's a simple Master's motion at 393 University at ten. It's for a very important client. Make sure you win." Before you can open your mouth to ask a question, the litigation partner has vanished. You look at the file. There's a Motion with today's date on it, set for ten a.m.. You look at your watch. It's already 9:30.

By 11:00 a.m. you've had a chance to read the file. Your client has a life insurance policy which the insurance company wants to cancel because she missed a payment last year. Your client wants to prevent the cancellation of the policy. The Master is in a surly mood.

The Master calls your case. The insurance company lawyer tells him that the action is premature because your client is still alive. You protest that the client wants to know where she stands so that her children will be protected. The Master rules against you and dismisses the motion.

At the end of the day, the litigation partner (you've since learned that he's the senior litigation partner) comes to your office. You tell him what happened, mumbling a lot. He thunders: "Didn't you tell the Master about Sections 96, 97 and 98 of the Courts of Justice Act?!? Didn't they teach you anything at law school?!?

You will be happy to know that today we will cover all of sections 96, 97 and 98 of the Courts of Justice Act. And yes, those sections would almost certainly have made a difference in Master's Chambers. Today we will go through the most important provisions of the Courts of Justice Act and, time permitting, start in on the Rules of Civil Procedure. Copies of the PowerPoint slides I will be using are available via the Downloads section of the course website.

A PowerPoint slide of sections 96-98 of the Courts of Justice Act will be shown.

PowerPoint slides are useful in imparting large amounts of information. They also facilitate the organization and structuring of a lecture. The downside is that they may promote passive learning. To avoid this latter problem, I will only put the relevant points on the slides in outline form so that the students will still need to pay attention to what I am saying and so that class discussion will not be foreclosed. {Note I have done empirical work at Osgoode and PowerPoint, used properly, will actually increase class participation.}

Also, on some of the slides I will insert almost no detail. This is on purpose to force me, and the students, to consult the Ontario Annual Practice. The slide for Juries on the next page is an example of this. It will force us to turn to section 108 of the Courts of Justice Act in order to answer the questions which have been posed on the slide.

As part of the discussion of the first slide on the next page, I will provide examples of types of lawsuits and ask the students whether or not a jury trial would be appropriate. This exercise will also alert them to the many types of civil lawsuits.

About halfway into the lecture, I will pause and ask the students to take out a piece of paper and write out a question about civil procedure which interests them. If possible, I will review these while they are taping themselves and use their questions when the lecture resumes or in future classes. Just before the break, I will relate what we have covered in the previous hour to the idea from the first lecture that Civil Procedure is the form through which disputes are settled.

One Minute Paper at end of Second Class

What point do you understand the best; what point do you understand the least? Explain.

Civil Procedure I: Overview of Week 2

One-hour Large Class

The format will continue to be primarily lecture-based with a view to describing the typical steps of a lawsuit as regulated by the rules. It is anticipated that the energy level of the students will continue to be high at the beginning of the term.

At about the mid-point of the lecture, the results of the pre-course quiz and the One Minute Papers will be reviewed. Any matters which the Papers disclosed as being unclear will be reviewed and discussed to the satisfaction of the students.

At the end of the lecture, the fact situation will be distributed.

Two-hour Large Class

The lecture will continue with the Rules. About half-way into the first hour, a Mock Interview will be staged. A student volunteer will be sought: someone who has been involved in or has witnessed a crime or an accident to be interviewed. If no one volunteers, I will be the interviewee. Several students volunteer in succession to interview or individual students ask questions from their seats, depending on their preference. At the end of the exercise, I will model good interviewing techniques and hopefully elicit new information.

The second lecture will continue with the Rules, then pause for a discussion of the Fact situation. Ideally the students will learn from the Mock Interview exercise and seek additional facts or clarifications. I will lead a class discussion with a view to ascertain understanding of the Rules covered this week. The class will conclude with a One Minute Paper relating to interviewing.

One-hour Small Group

The first half of the session will be a discussion dealing with the difference between substantive and procedural justice centering around M. Minow, "Politics and Procedure" in D. Kairys (ed.), The Politics of Law: A Progressive Critique (3^rd), (New York; Basic Books, 1998).

Then I will ask students for the areas they propose to cover in their papers. Topics will be assigned for those who have not chosen one. I will discuss the assignment in particular and writing in general. Students will be encouraged to find writing partners and to comply with the universityís policies on plagiarism. I will then pick a topic which has not been chosen/assigned and write an essay "live" in class using a word processor projected onto a screen so that everyone can follow along. Input to the essay from students will be encouraged.

One Minute Paper at end of Second Class (Week 2)

What did you learn about interviewing? Why is this important? Explain.

Note: When appropriate there will be a discussion to drive home the point that failure to obtain all the facts from the client may result in poor choices being made during the course of the lawsuit.

Civil Procedure I: Overview of Week 7 One-hour Large Class

Lead discussion on exam-writing skills expanding on the IRAC model (spot Issue, identify appropriate legal Rule, Apply rule to the facts and describe your Conclusion) by emphasizing that answers should canvass all possible options and resolutions: R.M. Fischl & J. Paul, Getting to Maybe, How to Excel on Law School Exams, (Durham, N.C.; Carolina Academic Press, 1999)
Reprise Rules relating to Discovery (documents and oral)
Lead discussion as to importance of discovery, how it helps resolve disputes, what to do if one party is suppressing information. How does discovery lead to trial fairness (procedural/substantive justice), management of court time?
Discuss issues arising out of the readings (Watson, pp. 775-918) relating to Discovery: documentary, physical, oral and written questions, and undertakings. Particular attention will be paid to the cases of Grossman v Toronto General Hospital (p. 785) and Ontario v McCarthy Tétrault (p. 847). Privilege will be touched upon.
Ask students to relate issues in this lecture to issues discussed on a previous day.

Two-hour Large Class

Use problem in Kolb cycle to illustrate Discovery of Documents (see below) as basis for class
Students doing extended papers will present them (Estimate 3 papers: approximately 10 minutes to present, 10 minutes of discussion each). Topics will be related to overall course goals. Ensure attendance by relating to exam (Note: course will be modified to ensure that some of these presentations will deal with new material). Encourage presenters to lead discussion.
A mock mid-term exam in the same format as the final exam will be administered.

One-hour Small Group

The issues in the mock mid-term will be briefly discussed. The exam will be marked over the weekend and handed back next week.
Students will be broken into groups of three to discuss scenario where opponent has failed to file her Affidavit of Documents and their possible responses. Should they negotiate, if so, how? Should they file a Notice of Motion? What is the likely reaction of the other lawyer: will she capitulate or retaliate? Once at the courthouse, should the motion be argued or settled? How will the client react to the bill? What is the likely reaction of the Judge: will she award costs to you, how much?
The whole class will reconvene to discuss together. If appropriate to the class, several students will stage a role-play of the above scenario.

Week 7: Beginning of Two-Hour Class

1. Concrete Experience: Show video or stage argument with client prior to argument of motion: Defendant has made a demand for a broad range of documents. Your client, the Plaintiff is complaining about your advice that he must produce his sensitive business records. The documents are producible but not really relevant to the real issues in the lawsuit. The Defendant may be seeking the documents merely as a delaying tactic. What options does the Plaintiff have? What are your obligations as his lawyer?

2. Reflective Observation: Students break into groups to discuss the issues and report. This should take 5 to 10 minutes and include time for a written summary.

4. Active Experimentation: Students write short paper integrating facts and issues with the Rules including a critique of the Rules. Divide class based on opinion as to whether disclosure should be compelled. Two volunteers from each group argue mock motion. If any student is unsure, he/she will judge, otherwise instructor to judge the "motion".

3. Abstract Conceptualization: Lecture on what the Rules mandate and why. Tie into reports from break-out groups.

Civil Procedure I: Mock Mid-Term Exam

A. There is only one piece of cake left in the fridge of the house where you and your new room-mate are living. You both want the cake; each of you feels strongly entitled to the cake. How would you resolve this conflict?

B. Carol Client has brought you a Statement of Claim as follows:

The Plaintiff claims damages in the amount of $1,000,000.00 plus costs.
The Plaintiff owns a prize-winning French Poodle registered under the name of "Princess Fifi".
The Defendant, Carol Client, owns a mongrel of indeterminate breeds which goes under the name of "Rover". The Plaintiff states and the fact is that the Defendant, not satisfied with inflicting herself upon the Plaintiffís neighborhood, allows "Rover" to run at large. As a result, "Rover" has caused an infestation on the silken skin and fuzzy fur of "Princess Fifi". "Princess Fifiís" skin is now so sensitive that she cannot bear to have anything on her fur, not even pink satin ribbons!

Carol advises you that the Plaintiff is crazy and that his claim is without merit.

List all the possible steps you could take with respect to the above Statement of Claim.

What step or steps would you recommend?

Why?

What outcomes do you envision as the result of your choice?

Marking Guide

The first question is meant to require common sense thinking, evoke alternate dispute resolution reactions and cause the students to reflect on the differences between this type of dispute and actions under the Rules of Civil Procedure.

The second question should evoke a lengthy list of possibilities including interviewing Carol Client in detail, filing a Statement of Defence and bringing a Motion to compel particulars. Marks are given for the comprehensiveness of options and the cogency of the reasons justifying the option chosen. Extra points for pointing out defects in the Claim.

Civil Procedure I: Overview of Week 8

One-hour Large Class

Lead discussion on oral and written advocacy including the ethics of describing facts and arguments contrary to your clientís position, what advocacy is meant to accomplish, typical legal arguments. What are judge's goals in interlocutory proceedings?
Use examples from R.F. Reid & R.E. Holland, Advocacy : Views from the Bench,(Aurora, Ont.; Canada Law Book, 1984)
Distribute mock mid-term Exam Answer Books, give assessment of class-wide performance (good and bad), and advise students of expanded office hours to discuss.

Two-hour Large Class

Lecture on Motions for Judgment and Motions to determine a point of law working step by step along Bloom's Taxonomy (see below) using material in readings (Watson, pp. 451-475) focussing on Ungerman v Galanis (p. 453).
Give fact situations from decided cases to students and ask how they would decide the cases. Ask them to justify their views. Note: by this point in the course, I hope that I've been able to create a safe learning environment such that I can now push the students hard without upsetting them. Discuss solution reached by judge who decided case.
Just before begins to flag, use the think/write/pair/discuss and then report process to move students forward to the next stage of Bloom's Taxonomy (next page).
At the beginning of the second hour, two guest lawyers will argue a motion for judgment. The students will then discuss the motion with the guests.

I will ask them to list the ways in which today's discussion relates to previous classes

One-hour Small Group

Discuss access to justice using the readings (Watson, pp. 663-774) as a starting point
Barriers to legal redress: ignorance of the law, economic barriers, other barriers
Effect of gender and race: are some issues swept under the rug?
The Charter: criminal vs civil remedies
Costs , Legal Aid, and Contingency fees
Discuss Polewsky v Home Hardware [1999] O.J. # 4151: should the poor have to pay Court fees?

Bloom's Taxonomy for Week 8

Level	Description	Teaching Methods	Student Actions

Knowledge	Criteria and procedure relating to Motions for Judgment	Tell the students what the Rule says and outline cases	Listen and take notes

Comprehension	Understanding of information given	Review Watson Materials focussing on Ungerman v Galinis	Interpret and construct schemata

Application	Use Rules, methods, concepts, and principles to solve practical problems	Questions based on facts of decided cases	Give their opinions thereby demonstrating use of knowledge

Analysis	Break information down into its Constituent Elements What were real bases of decisions?	Continue questions Probing, Guiding Observing Resource person	Discuss Uncover Dissect Test theories of judicial motivation

Synthesis	Put constituent elements together into congruent whole using original and creative thinking Relate today's material to Rules and concepts discussed previously	Reflect back to students what they have been saying Guide them to formulate legal test Extend, Summarize	Generalize Relate Compare Contrast Abstract Put together

Evaluation	Watch argument of Motion by guest lawyers Judges their ideas and arguments in light of above synthesis and legal test.	Guides discussion after demonstration to facilitate Evaluation. Clarifies Accepts Harmonizes	Judges Tests previous understanding Reformulates (if necessary)