CIVIL PROCEDURE

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 SUB-
STANTIVE LAW, which creates, defines, and regu-
lates 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 applica-
tion 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 Fed-
eral 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. dis-
trict 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. dis-
trict 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 timeconsuming.
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.
CROSS-REFERENCES
Alternative Dispute Resolution; Judicial Conference of the
United States; Substantive Law; Tort Law.