Teaching the Law School Curriculum - Institute for Law Teaching ...

Civil Procedure 21
as policy concerns and practical problems. If the case itself does not lend itself to discussion of more challenging
issues, I use hypotheticals that will raise these issues.
Of course, this all sounds very basic and mundane. But structuring a class this way is more difficult than it appears.
As to each element, you should be working toward the goal of making sure that all of your students are
learning the basics of the material covered. As to the more complex questions arising from these basic concepts,
your goal should be to engage all the students even if not all of them will fully comprehend every aspect of the
complexities discussed.
Motivating Students to Learn Forum Selection
Walter W. Heiser, University of San Diego School of Law
People find it difficult to learn material when they don’t understand its significance. Much of the difficulty of
understanding civil procedure stems from its having little apparent significance in the absence of some dispute.
For example, the significance of the venue rules is difficult to understand until one has some background in the
choice-of-law issues that can be manipulated by a choice of venue.
I recently had this lesson reinforced in a casual conversation that included a non-lawyer and someone who
had finished the first year of law school with a less-than-distinguished grade in Civil Procedure. The non-lawyer
was a pilot and was interested in the rules that governed where suits arising out of aircraft accidents could be
brought. The pilot had noticed that these suits were sometimes brought in the place of the accident but were
often brought in a variety of different places and wondered what was going on. I explained that sometimes the
law differed, so that the prudent plaintiffs’ attorney would consult the law on this point. Of course, I added, the
venue rules constrained the choices that could be made. Later, the former 1L told me that she had instantly and
for the first time understood the significance of the venue rules in that conversation.
Unfortunately, substantive law issues are often unproductive examples to use in explaining the significance of
rules governing accessibility to federal court, personal jurisdiction, and venue. After all, choice of law is a complicated
field, and the substantive law issues associated with substantive choices would often take the civil procedure
course far afield.
Fortunately, though, civil procedure itself often provides choice-of-law issues. Examples of this arise where
Erie principles do not apply to make the rule in federal court the same as the rule in state court. Two particular
examples of this are the granting of injunctive relief, which often has different standards in state and federal court,
and the Seventh Amendment jury trial right, which does not extend to proceedings in state court.
Forum-shopping is also significant in areas in which courts in different jurisdictions interpret the same procedural
rules differently. Thus, until very recently the federal Second Circuit applied “heightened pleading”
standards to employment discrimination cases. Courts are widely divided over the appropriate interpretation
of the supplemental jurisdiction statute, 28 U.S.C. § 1367. Outside the area of civil procedure, but comfortably
close to it, the federal Eighth Circuit has interpreted Fed. R. Evid. 407 to allow the admission of subsequent
remedial measures in strict products liability cases. Both these varying interpretations of what is supposedly
the same rule can provide enormous opportunities for clever lawyers seeking to obtain the best law for their
clients.
Having exposed students to the possibility of the forum selection provisions — which I use here to include the
rules governing federal jurisdiction, personal jurisdiction, and venue — one can then provide students with situations
in which selecting the forum becomes important. Once that is done, the students will understand the
significance of the rules in real cases and become motivated to learn them.
Greg Sergienko, Western State University College of Law