Saturday, March 05, 2005

The perils of section 1983 litigation

Section 1983 litigation is the most fun area of the law there is. You work with the Constitution. You are in federal court (whenever possible). There are many issues to litigate, and motion practice is likely to carry the day. There's a fair amount to learn just to get started, and in some respects the case law changes quickly. Some of the stuff in the brief you wrote last year is timeless, some of it is worthless. This article describes a case where the defense lawyers apparently lost their way in unraveling section 1983 concepts - including Leatherman. (I used to argue for heightened pleading in every case, then in every case as to the individuals only, then . . . .) In its opinion, the Court notes "a puzzling failure on the part of the movants to review, much less appreciate, the governing judicial opinions and statutory provisions applicable to the claims presented in the Complaint."

I've been there, not in quite the same way, but you have to rethink what you are saying in every case.

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