Civil procedureMexico

Last updated 16 Nov 11

Latin American Law

Today’s topics• Civilian civil procedure (Mexico)

– Ordinary court “process” • Phases: pleading, investigation, decision• Role of judge / parties• “Loser pays” costs/fees

– Appellate process• Review of facts and law / new evidence• Affirm, reverse, modify (not remand)

– Judicial decisions • “Sentence”• Majority, concurring, dissenting decisions

• Compare outcomes / convergence?

• Model for borrowing• Gain perspective• Discover truths • Impose / power

Value of knowing other legal systems

Is dispute resolution cultural?

Compare civil procedure …

• Role of judge / rules of evidence – Trevor• Absence of jury – Francisco• Corruption - Robbie

Common law Civil law1 Trial by jury2 Civil discovery3 How litigation financed4 Entrepreneurial lawyer5 Class actions6 Professional/active judge7 Evidentiary standards8 Burdens of proof9 Standing10 Appellate review11 Res judicata12 Annex civil to crim claim

True of false (Mexico)1. the “trial” phase is a series of informal business-like meetings,

with the judge as gatekeeper, fact-finder, decider2. the parties are often surprised by evidence found by the judge,

since the judge gathers evidence3. judges can admit any evidence, including hearsay and

confidential information, unless the evidence is illegal or immoral4. evidence constitutes writings submitted by the parties to the

judge, who may also take and summarize witness statements5. there is a convergence in civilian process toward fewer and more

concentrated proceedings (Stuttgart)6. judges have a duty to move the process forward and give a clear

decision, explaining evidence, legal issues, and their reasons7. appellate courts review both factual and legal issues, and can

admit new evidence8. appellate courts can affirm, reverse, or modify the trial court’s

judgment, but they cannot remand the case9. courts only award attorneys fees/costs to the winner if there was

bad faith, false evidence, non-meritorious claims, delay

Settlement

1-T / 2-F / 3-T / 4-T / 5-T / 6-F / 7-T / 8-T / 9-T (unusual)

Loser pays in US

Alaska’s “loser-pays” rule (which applies only to attorney fees) does not apply to defendants who, after refusing to settle for a specific amount, lose at trial and are held liable for less than the settlement offer.

Indeed, the defendant in such a case is considered the “prevailing party,” and the plaintiff must pay the defendant’s attorneys’ fees despite having obtained a verdict against the defendant.

Role of parties/judge in US civil litigation …

The civil law judge is like the Administrative Law Judge in the United States.

• More authority• No jury• Less formal proceeding / no rules of evidence• Though appeal different

Keith Orgel

Corruption in Mexican judiciary

• lack of trust • 6% said “much trust” in Supreme Court (2001)• two-thirds said little or no trust \

• “Impunity and corruption” (UN report)• Mexico ranked 55th (117 countries) in judicial

independence• allegiances to social and political actors / pressured by

higher-ranking peers

• delays and bribes• Federal Prosecution Office• Council of the Federal Judgeship.• disparity between federal and local courts

Trevor Ostbye

Compare the outcomes ofthe two systems …

War on terrorismProperty rights

Antonio Zuniga, a 26 year old Mexican man

Lex Mundi Project (2002)

(1) professional judges / lawyers(2) written as opposed to oral arguments(3) legal justification by disputants / judges (4) regulation of evidence Indices of formalism(5) superior review of first-instance judgment(6) formalities during dispute (service of process)(7) number of independent procedural steps

US MexicoEviction of non-paying tenant

Formalism: 2.97(49 days)

Formalism: 4.82(170 days)

Collection of bounced checked

Formalism: 2.62 (54 days)

Formalism: 4.71(283 days)

Lex Mundi Project“Consistent with the literature on

comparative law, we find that judicial formalism is systematically greater in civil law countries, and especially French civil law countries, than in common law countries.”

“Formalism is nearly universally associated with lower survey measures of the quality of legal system, including judicial efficiency, access to justice, honesty, consistency, impartiality, fairness, and even human rights.”

Florencio López-de-Silanes

Is there convergence – what does this mean for civil litigation …

http://cedmedia.ntu.edu.sg/gallery/displayimage.php?album=343&pos=0

Why hasn’t Oquendo mentioned globalization’s effect on Latin American Law – the big elephant in the room?

To foment trade, many new provisions in the Mexican Federal Code of Civil Procedure were literally copied from corresponding international conventions.

Robbie Samuel

End

Legal fees …

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

to plead your case. The most important pieces are missing: money.» (1840)

The Mexican Federal Code of Civil Procedure was amended in 2009 to include, among its 1000 articles, a “book” devoted to International procedure.

Federal FRCP does not have special sections on international procedures. In fact, except for rules on minimum contacts and forum non conveniens, international aspects of case arent’ really addressed.

Taylor Noland

Role of the judge? Keith Orgel

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

The Civil Law system is marginally better suited than the Common Law system for anti-terror prosecutions -- permitting more closed proceedings and less technically demanding evidentiary standards. But both are built upon the assumption that it is better to let the guilty go free than to convict the innocent.

Only the law of armed conflict permits the flexibility needed to disrupt al Qaeda's operations on an international level.

David Rivkin & Lee CaseyFormer Justice Dept attorneys

Human Rights Watch:

“Among Mexico’s most serious human rights problems are those affecting its criminal justice system. Persons under arrest or imprisonment face torture and ill-treatment, and law enforcement officials often neglect to investigate and prosecute those responsible for human rights violations.”

Tom McNutt