civil procedure

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Civil Procedure

The methods, procedures, and practices used in civil cases.

The judicial system is essentially divided into two types of cases: civil and criminal. Thus, a study of Civil Procedure is basically a study of the procedures that apply in cases that are not criminal.

Generally, criminal trials are used by the government to protect and provide relief to the general public by attempting to punish an individual. Civil trials can be used by anyone to enforce, redress, or protect their legal rights through court orders and monetary awards. The two types of trials are very different in character and thus have separate procedural rules and practices.

Procedural law is distinguished from Substantive Law, which creates, defines, and regulates the rights and duties of individuals. Federal and state constitutions, statutes, and judicial decisions form the basis for substantive Civil Law on matters such as contracts, torts,and probate. Procedural law prescribes the methods by which individuals may enforce substantive laws. The basic concern of procedural law is the fair, orderly, efficient, and predictable application of substantive laws. Procedural guidance can be found in court rules, in statutes, and in judicial decisions.

Federal Rules of Civil Procedure

State and federal courts maintain separate procedural rules. On the federal level, the Federal Rules of Civil Procedure govern the process of civil litigation at the level of the U.S. district court, which is a trial court. At least one U.S. district court operates in each state. Each district court also exists within one of thirteen federal circuits. Any appeal of a decision by a U.S. district court is heard by the court of appeals for the federal circuit in which the district court sits. Appeals of decisions by a U.S. court of appeals may be heard by the Supreme Court of the United States.

The Supreme Court and the courts of appeals use procedures contained in the Federal Rules of Appellate Procedure and in the U.S. Supreme Court Rules. As reviewing courts, they are concerned with the district courts' application of the Federal Rules of Civil Procedure.

The Federal Rules of Civil Procedure are now contained in title 28 of the U.S. Code. Before 1938, the procedural rules in U.S. district courts varied from circuit to circuit. The rules in the western United States, for example, were generally less complex than those in the East. To add to the confusion, federal civil cases were designated either at law, which essentially meant that the relief sought was monetary or equitable, which meant that the court was asked to act on principles of fairness and, generally, to award nonmonetary relief. The distinction was important because the procedural rules for a case at law differed from those for an Equity suit.

In response to widespread criticism of procedural complexity, the U.S. Congress in 1934 passed the Federal Rules Enabling Act (28 U.S.C.A. §§ 2071, 2072). This act conferred on the Supreme Court the power to make new rules for federal courts. In 1938, new rules were recommended by an advisory committee appointed by the Supreme Court and approved by Congress. The new rules featured simplified Pleading requirements, comprehensive discovery procedures, a Pretrial Conference to narrow the scope of a trial and define issues, and broad provisions for joining parties and claims to a lawsuit. In addition, legal and equitable claims were merged to proceed with the same set of rules.

After the first set of uniform federal rules were promulgated, it became clear that continuous oversight of the rules was necessary to ensure their improvement. In 1958, Congress created the Judicial Conference of the United States, a freestanding body to study federal civil procedure and propose amendments to the Supreme Court. The Judicial Conference, in turn, created the ongoing Committee on Rules of Practice and Procedure to help fashion the best procedural rules for federal courts. Subsequently amendments to the Federal Rules of Civil Procedure occurred on a regular basis.

State courts generally follow the same judicial hierarchy as federal courts. In all states, a party to a civil suit is entitled to at least one review of a trial court decision. In some states, a party may be entitled to two appeals: one in a court of appeals, and one in the state supreme court.

Procedural rules in state courts are similar to the federal rules. Indeed, many states base their procedural rules on the federal rules. Thus, there is a large measure of uniformity among the states and among state and federal courts.

Litigation Process: Pleadings, Justisdiction, and Venue

A civil action is commenced with the filing of a complaint. The plaintiff must file the complaint with the court and must give a summons to the court and a copy of the complaint to the defendant. The complaint must set forth the claims and the legal bases for them.

Before filing the complaint, the plaintiff must decide where to file it. As a general rule, cases are filed in state, not federal, courts. The question of whether a particular court has authority over a certain matter and certain parties is one of jurisdiction. Federal courts generally have jurisdiction over civil actions in three situations. The most common is when the parties to the suit live in different states and the amount of money in controversy exceeds $50,000. The second instance is when a claim is specifically authorized by federal statute. The third is when a claim is made by or against the federal government or its agents.

The jurisdiction of state courts depends on a number of variables. Plaintiffs filing in state court generally prefer to file in their home state. However, this may be difficult in a case where the defendant lives in another state and the injury occurred outside the plaintiff's home state. A court in the plaintiff's home state can gain jurisdiction over an out-of-state defendant in several ways. For example, if the defendant enters the plaintiff's home state, the plaintiff may serve the defendant there and force the defendant to appear there for trial. Or the plaintiff can show the court that the defendant has some minimal amount of contact with the plaintiff's home state. Or the plaintiff can show that the defendant has property in the plaintiff's home state and the property is the subject matter of the dispute.

In addition to jurisdiction, the plaintiff must also consider venue. Venue is the term describing the particular county or geographical area in which a court with jurisdiction may hear and determine a case. The plaintiff makes a decision on venue after deciding whether to file suit in state or federal court. For example, if a plaintiff decides to file suit in state court, and has settled on a particular state, the plaintiff must decide in which county to file suit. The overriding consideration in determining the best venue in a case is the convenience to the parties.

Once the plaintiff determines where to file the complaint, the plaintiff must prepare pleadings and motions. Pleadings are the plaintiff's initial allegations and the defendant's responses to those allegations. Motions are requests made by the parties for a specific order by the court. Courts usually schedule pretrial conferences to review and rule on pleadings and motions, sort out preliminary issues, and prepare a case for trial.

Before a case can proceed, the court must determine whether the plaintiff has standing to bring the suit. In order to hear the suit the court must find that the plaintiff has some legally protectible, tangible interest in the outcome of the litigation. Other plaintiffs may join the original plaintiff if they seek the same relief concerning the same transaction or event and the complaints involve a common Question of Law or fact. This is called Joinder.

In some cases, joinder may be compulsory. Under Rule 19, a person must be joined if (1) complete relief cannot be accorded to the parties without joining the missing person or (2) the missing person claims an interest in the action, and absence from the suit will impair that person's ability to protect the interest, or absence would subject the parties to multiple or inconsistent obligations regarding the matter of the suit. Both plaintiffs and defendants may be ordered by the court to join a suit.

The court must also determine before trial that the issues in the case are Justiciable, that is, the case is ready and proper for a judicial determination. Courts do not hear hypothetical, abstract, or political cases. For example, a person may not file a suit against a legislator over the legislator's vote on a matter before the legislature. Nor may a person file a suit against another unless the filing person can demonstrate having been harmed by the other.

If the complaint does not state a claim upon which judicial relief can be granted, the defendant may move for Summary Judgment, which is a request that the court issue a final judgment on the case in favor of the defendant. The plaintiff also may submit a motion for summary judgment, either soon after filing the complaint or after the defendant submits a summary judgment motion. When deciding a motion for summary judgment, the court must consider the pleadings in the light most favorable to the party opposing the motion.

The parties to a lawsuit prepare their case based on information gained through the process of discovery. Discovery consists of a variety of methods including depositions and interrogatories. A deposition is an interview of a party or witness conducted by a lawyer. Usually, this interview is conducted orally with a lawyer for the other side present and able to participate; sometimes, it is conducted using written questions. Information about a party may be secured through written interrogatories or requests to produce documents or other things. These requests may be served only upon a party. A request for production may seek any item within a party's control.

Procedural rules for depositions and other forms of discovery address a number of concerns, including how a deposition is conducted, the permissible scope of a deposition, who may conduct a deposition, when a party may object to a question at a deposition, when a party may object to an interrogatory, when a party may enter upon land for inspection, when a party may make physical or mental inspections of another party, and what happens when a party does not cooperate with a court order directing compliance with discovery.

If the parties cannot reach a settlement, the case goes to trial. Just before trial, the plaintiff must decide whether to ask for a jury trial. Not all civil cases may be tried before a jury. The right to a jury trial is usually tied to the amount of money at issue: if the case concerns less than a certain amount, such as $10,000, the case may be limited to trial before a judge. In federal court, however, all parties have the constitutional right to a jury trial. If a plaintiff or defendant is granted a jury trial, both sides will have the opportunity to screen potential jurors for bias.

At trial, each side is given the opportunity to make an Opening Statement to the fact finder, be it judge or jury. The plaintiff then presents evidence. Evidence can include testimony from witnesses and tangible items presented through witnesses. When the plaintiff has presented her or his case, the defendant has the option of presenting evidence. After the defendant presents evidence, the parties make closing arguments to the fact finder.After final arguments, the judge must determine what laws apply to the case. Both parties submit proposed instructions to the judge. If the case is tried before a jury, the judge must read instructions to the jury. If the case is tried before a judge, the judge will give the parties an opportunity to argue that certain favorable law controls the case.

At this point, either party may move the court for a directed verdict. This is a request that the court decide in the party's favor before deliberating on the case or sending it to the jury. A directed verdict may be granted only if no substantial evidence supports a finding in the opposing party's favor, and the opposing party bears the burden of producing evidence on the issue. If the judge does not issue a directed verdict, the fact finder retires to deliberate the case in secret.

The final phase of the trial is the judgment. The court has the option of requesting different types of verdicts. If it requests a general verdict, it is looking for a flat finding of liability or no liability. If it requests a special verdict, it expects the fact finder to answer specific factual questions, and then the judge determines the legal consequences of the answers.

In a complex jury trial, the court may request that the jury deliver a general verdict along with answers to special interrogatories. This form of verdict allows the judge to ensure that the jury delivers the correct verdict based on its factual findings.

The number of jurors on a civil jury can be as few as five or as many as twelve, depending on the jurisdiction. In most jurisdictions, including federal courts, the jury's decision must be unanimous, but some jurisdictions allow a verdict with something less than unanimity, such as an agreement among nine of twelve jurors.

If the defendant has failed to appear for the proceedings, default judgment will be entered for the plaintiff. However, in this situation, the defendant may contest the judgment when the plaintiff attempts to collect on it, by filing a separate suit and challenging the jurisdiction of the court.

When the verdict is delivered, the losing party may seek a reversal of the judgment. Sometimes a verdict is unsatisfactory to both parties, and both parties seek a reversal; this might happen, for example, when one party wins the lawsuit but receives a small damages award. Reversal of a verdict may be pursued through a motion for Judgment Notwithstanding the Verdict, or J.N.O.V. (for judgment non obstante veredicto, which is Latin for "notwithstanding the verdict"). The standard for this order is the same as that for a directed verdict. A reversal of judgment usually occurs only in jury trials; judges generally are not inclined to reverse their own decisions.

A court may grant a new trial if procedural problems at trial prejudiced a party or worked against the interests of a party, and affected the verdict. Such problems include juror misconduct and unfair withholding of evidence by an opposing party. A new trial may also be granted if the damages authorized by the jury were excessive or inadequate. In extreme cases, a new trial may be granted if newly discovered evidence comes to light after the case is given to the jury.

All jurisdictions give parties to a civil suit the right to at least one appeal. A decision may be reversed if an error at trial prejudiced the appellant (the party bringing the appeal). Appeals courts generally do not reverse verdicts based on the Weight of Evidence. Instead, they limit their review of cases to mistakes of law. This nebulous concept generally refers to mistakes relating to procedural and constitutional violations.

Sometimes a party may appeal a court order or decision to a higher court during trial. Known as an Interlocutory appeal, this option is limited. A party may appeal during trial if the party stands to suffer irreparable harm if the order or decision is not immediately reviewed. A party may also appeal an order or decision during trial if it affects a matter that is collateral to, or separate from, the litigation.

After a judgment is reached, the winning party must enforce it. If the losing party does not voluntarily relinquish the disputed property or pay the monetary judgment, the winning party may seize and sell the property of the losing party. This is accomplished by filing the judgment in the county where the property is located and proceeding to obtain ownership of the property through another civil suit. If the losing party has no money, the winning party may seek to garnish a portion of the losing party's wages. If the losing party does not work and has no property, the winning party may be unable to collect on the judgment.

Some parties come to court seeking provisional remedies, which are forms of temporary relief available in urgent situations. Temporary restraining orders and injunctions are court orders that direct a party to perform a certain act or refrain from performing a certain act. For example, if a party wants to bring suit to prevent the imminent demolition of what he believes is a historic building, he may petition the court for a Temporary Restraining Order to prevent demolition while the suit is filed. A temporary restraining order will last up to ten days. When the ten days have expired, the litigant may seek either renewal of the temporary restraining order or a preliminary injunction.

A preliminary Injunction, if granted, requires a party to perform an act or refrain from performing an act until the end of trial. A permanent injunction is a court order that requires a defendant to perform an act or refrain from performing an act permanently.

Civil Justice Reform Act of 1990

Civil cases often are expensive and time-consuming. In August 1990, the U.S. Congress passed the Civil Justice Reform Act to help remedy these problems (28 U.S.C.A. §§ 471–482). The U.S. Senate explained that the Civil Justice Reform Act was "to promote for all citizens, rich or poor, individual or corporation, plaintiff or defendant, the just, speedy and inexpensive resolution of civil disputes in our Nation's federal courts" (S. Rep. No. 101-416, 101 Cong., 2d Sess., at 1 [Aug. 3, 1990]). The act ordered each U.S. district court to implement a Civil Justice Expense and Delay Reduction Plan under the direction of an advisory group comprising "those who must live with the civil justice system on a regular basis" (S. Rep. No. 101-416, at 414 [quoting statement of Senate Judiciary Committee chairman Biden, Cong. Rec. S416 (Jan. 25, 1990)]).

The advisory groups in each federal district were appointed by the chief judge of the federal circuit, and they generally consisted of judges, clerks, and law professors. These experts prepared a report on methods for reducing expense and delay in civil litigation. The report was then considered by the federal circuit court judges in forming the Civil Justice Expense and Delay Reduction Plan.

One major challenge that faced the advisory groups was how to get courts to best use modern technology. Since passage of the act, many federal circuits have authorized the filing of court documents by facsimile and other electronic means, which may include the use of computers.

Federal courts have also acted to improve scheduling. The U.S. District Court for the District of New Hampshire, for example, created four separate categories for scheduling civil cases: administrative, expedited ("rocket docket"), standard, and complex. The determination of a case's category is made at the preliminary pretrial conference. Most cases fall into the standard category, which means a trial will be held within one year of the preliminary pretrial conference. A rocket docket case can be tried within six months of the preliminary pretrial conference, if the parties agree and the trial will last no more than five days. Administrative and complex cases are scheduled with special attention. By identifying the length and complexity of a case at the preliminary pretrial conference, federal circuit courts are able to minimize unnecessary delays.

In all jurisdictions, preliminary pretrial conferences have become important in civil litigation. The court, after consulting the parties, schedules and holds this conference within a certain amount of time after the filing of the complaint. At this conference, the court attempts to resolve all the issues that can be resolved outside of trial. These issues include the control and scheduling of discovery, the admissibility of evidence, the possibility of separate trials, and orders limiting the length of the trial presentation. To reach, or decide, substantive issues more quickly, many federal courts ask litigants to file any motions for summary judgment or motions to dismiss before the preliminary pretrial conference. Pre-trial conferences also offer the opportunity to discuss settling the case, allowing both parties to save the costs of going to trial and litigating the issue. Saving costs by settling disputes without resorting to formal litigation is the primary objective of Alternative Dispute Resolution.

Alternative Dispute Resolution

Alternative dispute resolution (ADR) is a generic term that refers to a wide array of practices the purpose of which are to manage and quickly resolve disagreements at a lower cost than formal civil litigation and with as little adverse impact as possible on business and personal relationships. Every jurisdiction provides residents with some form of ADR technique by which they can resolve legal disputes, but Arbitration, mediation, minitrials, and early neutral evaluations are generally the most popular.Arbitration is the process of referring a dispute to an impartial intermediary chosen by the parties who agree in advance to abide by the arbitrator's award that is issued after a hearing at which all parties have the opportunity to be heard. There are two different forms of arbitration: private and judicial arbitration. Private arbitration is the product of an agreement to arbitrate drafted by the parties who enter a relationship anticipating that disputes will arise but who mutually desire to keep any such disputes out of court. Judicial arbitration, sometimes called court-annexed arbitration, is a non-binding form of arbitration, which means that any party dissatisfied with the arbitrator's decision may choose to go to trial rather than accept the decision. However, most jurisdictions prescribe a specific time period within which the parties to a judicial arbitration may elect to reject the arbitrator's decision and go to trial. If this time period expires before either party has rejected the arbitrator's decision, the decision becomes final, binding, and just as enforceable as a private arbitrator's decision.

Mediation is a rapidly growing ADR technique. Sometimes referred to as conciliation, mediation consists of assisted negotiations in which the disputants agree to enlist the help of a neutral intermediary, whose job it is to facilitate a voluntary, mutually acceptable settlement. A mediator's primary function is to identify issues, explore possible bases for agreement, discuss the consequences of reaching impasse, and encourage each party to accommodate the interests of other parties through negotiation. However, unlike arbitrators, mediators lack the power to impose a decision on the parties if they fail to reach an agreement on their own.

A Minitrial is a process by which the attorneys for the parties present a brief version of the case to a panel, often comprised of the clients themselves and a neutral intermediary who chairs the process. Expert witnesses (and less frequently, lay witnesses) may be used in presenting the case. After the presentation, the clients, normally top management representatives who by now are more aware of the strengths and weaknesses of their positions, attempt to negotiate a settlement of the dispute. If a negotiated settlement is not reached, the parties may allow the intermediary to mediate the dispute or render a non-binding Advisory Opinion regarding the likely outcome of the case were it to be tried in civil court.

Early neutral evaluation is an informal process by which a neutral intermediary is appointed to hear the facts and arguments of counsel and the parties. After the hearing, the intermediary provides an evaluation of the strengths and weaknesses of the parties' positions and the parties' potential exposure to liability for money damages. The parties, counsel, and intermediary then engage in discussions designed to assist the parties in identifying the agreed upon facts, isolating the issues in dispute, locating areas in which further investigation would be useful, and devising a plan to streamline the investigative process. Settlement negotiations and mediation may follow, but only if the parties desire. In some jurisdictions, early neutral evaluation is a court-ordered ADR technique. However, even in these jurisdictions the parties are given the option of hiring their own neutral intermediary or having the court appoint one.

Further readings

Anderson, Peter D. 1994. Federal Discovery Procedure under New Rules. Concord, N.H.: New Hampshire Continuing Legal Education.

Clermont, Kevin M. 1992. Federal Rules of Civil Procedure 1992 and Selected Other Procedural Provisions. Westbury, N.Y.: Foundation Press.

Leubsdorf, John. 1984. "Constitutional Civil Procedure." Texas Law Review 63.

Louisell, David W., Geoffrey C. Hazard, Jr., and Colin C. Tait. Pleading and Procedure: State and Federal. 6th ed. Westbury, N.Y.: Foundation Press.

Meslar, Roger W., ed. Legalines Civil Procedure. Chicago: Harcourt Brace Jovanovich.

Rice, Emily Gray. 1994. Summary of the Civil Justice Expense and Delay Reduction Plan for the United States District Court for the District of New Hampshire. Concord, N.H.: New Hampshire Continuing Legal Education.

U.S. Senate. 1990. 101st Cong., 2d Sess. S. Rept. 416.

Zuckerman, Adrian A.S., ed. 1999. Civil Justice in Crisis: Comparative Perspectives of Civil Procedure. New York: Oxford University Press.


Alternative Dispute Resolution; Judicial Conference of the United States; Substantive Law; Tort Law.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

civil procedure

n. the complex and often confusing body of rules and regulations set out in both state (usually Code of Civil Procedure) and federal (Federal Code of Procedure) laws which establish the format under which civil lawsuits are filed, pursued and tried. Civil procedure refers only to form and procedure, and not to the substantive law which gives people the right to sue or defend a lawsuit. (See: civil, civil action, civil code, civil law)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

civil procedure

the rules of law regulating the forms, pleading and operation of the civil, as opposed to the criminal, courts.
Collins Dictionary of Law © W.J. Stewart, 2006
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