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II.A. The "old" Days: Pre-FRCP
  • 1 Pleading” from Yeazell, Civil Procedure, 7th Edition (also read notes 2 and 3 following)

  • 2 Cheat Sheet on Basics of Civil Litigation

    To help you understand civil litigation, let's go over a few basics.


    Claim: Under the Federal Rules of Civil Procedure, a “claim” is the group of circumstances for which a court will grant relief (sometimes it is also called a "cause of action").

    Element: Each claim is divided into parts, called “elements.”

    Prima Facie Case: When the judge asks what a lawyer’s prima facie case is, she may either be asking for the elements of the claim or a short description of the evidence the lawyer has for each of those elements.


    Winning in Civil Litigation:

    In order to win in civil litigation, a plaintiff has three obligations.  The plaintiff must first state a claim for which they are entitled to relief (and in some cases, state facts underlying the claim).  This is sometimes referred to as the "burden of pleading". Second, the plaintiff must meet a "burden of production" by submitting evidence to permit a reasonable person to find each element of the claim.  Third, the plaintiff must ultimately meet a "burden of persuasion' by persuading the fact finder that each element is true.  The burdens are like successive hurdles in the Olympics with the course of civil litigation being like the race. Once you jump over one you then face the second and then the third.

    Sample Claims:

    When a claim/cause of action is created by state law, that is where you will find a list of its elements (either by statute or less often by the work of common law judges). When federal law creates the cause of action, that is where you will find the elements. Many of your first year classes are about learning what these elements are and how they work. To give you an example, here are a few common civil causes of action you may already have encountered.

    Assault: (1) intent to cause harmful or offensive contact; and (2) imminent apprehension of such contact.

    Defamation: (1) false and defamatory statement; (2) publication not privileged; (3) fault (in some cases negligence and in some cases malice); (4) injury; and (5) recipient understood communication refers to plaintiff.

    Negligence: (1) duty; (2) breach; (3) cause-in-fact; (4) proximate cause; and (5) injury.

    Trespass: (1) unauthorized entry by defendant; (2) property possessed by plaintiff; and (3) injury (damage).

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