3. Subject matter jurisdiction: If the case is a federal case, you must then ask whether the court has subject matter jurisdiction. Essentially, this means that one of the following two things must be the case:
a. Diversity: Either the case is between citizens of different states (with “complete diversity” required, so that no plaintiff is a citizen of the same state as any defendant) and more than $75,000 is at stake; or
b. Federal question: The case raises a “federal question.” Essentially, this means that plaintiff’s right to recover stems from the U.S. Constitution, a federal treaty, or an act of Congress. (There is no minimum amount required to be at stake in federal question cases.)
4. Pleading: Next, you must examine whether the pleadings are proper. This can involve a whole range of questions, most of which will be fairly easy to spot. Typical questions might include: Did D answer in time? Can D make a motion to get the complaint dismissed for failure to state a claim? May P now amend her pleadings?
5. Discovery: Next, you may have a complex of issues relating to pretrial discovery, the process by which each side finds out details about the other side’s case. Again, you should be able to spot discovery questions fairly readily from the fact pattern. Typical issues might include: May P take the oral deposition of W, an expert witness whom D is planning to call at trial? May D obtain court-ordered sanctions against P for failing to cooperate with discovery? May P use at trial the results of a deposition taken of W in a different case?
6. Ascertaining applicable law: Now, figure out what jurisdiction’s law should be used in the case. The most important problem of this type is: In a diversity case, may the federal court apply its own concepts of “federal common law” (i.e., federal judge-made law), or must the court apply the law of the state where the federal court sits? In brief, the answer is that if the state has a substantive law (whether a statute or a judge-made principle) that is on point, the federal court sitting in diversity must apply that law. (Example: In a diversity case concerning negligence, the federal court must normally apply the negligence law of the state where the court sits.) This whole set of problems relating to ascertaining applicable law is commonly referred to as “Erie” problems, after Erie v. Tompkins, probably the most important case in federal Civil Procedure.
7. Trial procedure: Next, you may face a series of issues relating to trial procedure. Typical questions here are: What burden of proof does P bear, both to avoid having the case dismissed before it is fully tried, and to prevail in front of the judge or jury? May the case be dismissed before trial pursuant to the doctrine of summary judgment? Is there a right to jury trial here? May the judge order a directed verdict, effectively taking the case away from the jury? Should the judge grant a new trial or a judgment notwithstanding the verdict?
8. Multi-party and multi-claim litigation: If there is more than one claim in the case, or more than the basic two parties (a single plaintiff and a single defendant), you will face a whole host of issues related to the multi-party or multi-claim nature of the litigation. You must be prepared to deal with the various methods of bringing multiple parties and multiple claims into a case.