Latin American Law

Last updated 21 Sep 11

Elements> Civil Procedure

> Public Law

Convergence …

Lex Mundi Project(1) Landlord evicts non-paying tenant(2) Creditor collects bounced check

Friedrich Karl von Savigny

Napoleón Bonaparte

Sir William Blackstone

Formalism

Quality of justice

Legal origins

Compare civil procedures …

• Issues – facts / law• Information – party discovery / investigation• Witness – public / private• Evidence – oral / written• Decision – jury / judge• Appeal – legal error / de novo Winslow Taylor

Taryn Kadar

Stages in US civil litigation

Pleadings

• Complaint (joinder / individual or class action)

• Answer (admit, deny, lack info / counterclaim, cross-claim)

• Liberal “notice pleading” and amendments

Filters – Default

judgment – Motion to

dismiss (“so what”)

– Rule11 sanctions

Discovery

• Depositions• Interrogatories• Documents• Examinations

(phys / mental)• Admissions

Filters– Protections

(privileges, WP, order)

– Discovery conference

– Compel discovery / sanctions

Pre-trial

• Settlement conference

• ADR: mediation / arbitration

• Pre-trial conference

Filters– Summary

judgment (“trial on papers”)

– Voluntary dismissal (settle)

Trial

• Jury / bench• Continuous:

live witness / exhibits

• Rules of evidence

• Lawyer arguments

Filters– DV (J as

MOL)– Jury

instructions

Post-trial

• Judgment: $, injunc, decl

• Costs: court, atty fees

• Reopen case before appeal

• Appeal of law (on record)

Filters – JNOV– New trial

(mistakes, new E)

– Appeal: affirm, reverse, remand

French Code of Civil Procedure (1972)

CHAPTER I - GUIDING PRINCIPLES FOR TRIAL

I PROCEEDINGS (Articles 1 to 3)II THE SUBJECT MATTER OF A

DISPUTE (Articles 4 to 5)III THE FACTS (Articles 6 to 8)IV EVIDENCE (Articles 9 to 11)V THE LAW (Articles 12 to 13)VI THE ADVERSARY PROCEDURE

(Articles 14 to 17)VII THE CONTENTION (Articles 18

to 20)VIII SETTLEMENT (Article 21)IX ORAL ARGUMENTS (Articles 22

to 23)X DUTY OF COURTESY (Article 24)

Article 9It shall be incumbent on each party to prove in accordance with the law the constituent facts in view of the success of his claim.

Article 10A judge may exercise such powers ex proprio motu in the giving of such directions as shall be legally appropriate.

Article 11Parties shall be held to assist in the implementation of directions, save that the judge may draw such conclusions from the abstention or refusal of a party in relation to the same.

Legal fees …

Honoré Daumier «My dear Sir, it is impossible for me

to plead your case. The most important

pieces are missing: money.» (1840)Sam Wellborn

(Hague Convention on Civil Procedure)

Compare arbitration …

• Conduct of proceedings - hearings• Attorney-client relationship• Evidence – witnesses / depositions• Law – basis for decision• Decision – appeal /precedent

Sam Wellborn

Why is common law “inductive” and civil law “deductive”?

Sam Wellborn

The principal characteristic of the common law is the inductive process -- generalizing from common points between distinct cases and then establishing legal categories.

Defining characteristic of the civil law tradition is its conceptualism – emphasis on abstract concepts and deductive approach to legal reasoning, proceeding from the general to the specific. The Honourable

Mr. Justice Michel Bastarache,Supreme Court of Canada

What is public law …

Differences in constitutionalism …

Winslow Taylor

Enlightenment

Constitutionalism

Enlightenment

Constitutionalism

Enlightenment

Judicial review

Constitutionalism

Enlightenment

Judicial review

Constitutionalcourts

Constitutional courts

Trial court

Appeals court

Trial courtTrial court

Appeals court

Supreme court Constitutionalcourt

Politicalbodies

Individuals

reference

reference

reference

Constitutional review

France Germany US

CourtSpecial

(Const Council)Special

(Const Court)US (federal)

Supreme Court

CompositionFormer pres, legis

heads, 9-yr appointees

Appointees(ord judges,

for term)

Appointees

(for life)

StandingPresident, PM,

legislature (heads, 60%)

States, fed govt, 1/3 Bundestag + individuals

States,

Injured parties

Timing Before enactmentAfter enactment

(S/L)After enactment

Reference NoneFrom courts

(when in doubt)

Appeal

(lower courts can decide const)

Decision No dissent Majority Majority (dissents)

Taryn Kadar

Constitutional review

France Germany US

CourtSpecial

(Const Council)Special

(Const Court)US (federal)

Supreme Court

CompositionFormer pres, legis

heads, 9-yr appointees

Appointees(ord judges,

for term)

Appointees

(for life)

StandingPresident, PM,

legislature (heads, 60%)

States, fed govt, 1/3 Bundestag + individuals

States,

Injured parties

Timing Before enactmentAfter enactment

(S/L)After enactment

Reference NoneFrom courts

(when in doubt)

Appeal

(lower courts can decide const)

Decision No dissent Majority Majority (dissents)

Constitutional review

France Germany US

CourtSpecial

(Const Council)Special

(Const Court)US (federal)

Supreme Court

CompositionFormer pres, legis

heads, 9-yr appointees

Appointees(ord judges,

for term)

Appointees

(for life)

StandingPresident, PM,

legislature (heads, 60%)

States, fed govt, 1/3 Bundestag + individuals

States,

Injured parties

Timing Before enactmentAfter enactment

(S/L)After enactment

Reference NoneFrom courts

(when in doubt)

Appeal

(lower courts can decide const)

Decision No dissent Majority Majority (dissents)

End

Poor’s access to justice in LatAm

– Information– Costs – Corruption – Formalism– Fear and mistrust– Court delays– Geographic causes