Civil procedure in the United States
Encyclopedia
Civil procedure in the United States consists of the rules of civil procedure that govern procedure in the federal courts
, the 50 state court
systems, and in the territorial courts. Like much of American law
, civil procedure is not reserved to the federal government in the Constitution. As a result, each state is free to operate its own system of civil procedure independent of her sister states and the federal court system.
Procedure in the early federal courts was rather incoherent. The Process Act of 1792 authorized the federal courts to write their own procedural rules for everything but actions at law. In the context of actions at law, the Process Act of 1789 was so poorly written that it forced a federal court sitting in a state to apply the common law rules of pleading and procedure that were in effect in the state at the time it joined the Union, regardless of whether the state had modified or revised its civil procedure system since. In other words, even though a state's common law pleading system was always constantly evolving through case law
, the federal courts in that state were literally frozen in time. The Process Act did not speak to the problem of what law to apply in new states that joined the Union after the original Thirteen Colonies. In 1828, Congress enacted a law which stated that federal courts in new states would follow the civil procedure in effect at the time those states joined the Union.
Unfortunately for the federal courts, state civil procedure law began to diverge dramatically in the mid-19th century. In the 1840s, the law reformer David Dudley Field II launched a movement away from common law pleading and towards what came to be called "code pleading." Common law pleading operated under ad hoc procedures that developed haphazardly through case law
. In other words, a particular procedure was followed just because some (often ancient) decision said so, but none of those decisions were looking at the "big picture" to see if the entire procedural system made sense. In contrast, code pleading was carefully designed, at least in theory, with the entire lifecycle of a case in mind so that it would be simple, elegant, and logical, and was implemented by the enacting of a "code of civil procedure" by the state legislature. Eventually, 24 states enacted versions of the Field Code in part or in whole.
By the late 19th century, lawyers were becoming very frustrated with having to follow procedures that had been obsolete in their states for decades every time they litigated actions at law in federal courts. In response, Congress finally enacted the Conformity Act of 1872, which directed federal courts to conform their procedure in such actions to the current practice in the states in which they were sitting. Federal courts were allowed to continue to develop the federal common law of evidence (most of which was replaced a century later by the Federal Rules of Evidence
).
However, allowing federal courts to conform to current state procedure still did not solve the federal courts' problems with actions at law, because by the turn of the 20th century, the U.S. was a mix of common law and code procedure states. Even worse, many code procedure states had merged law and equity procedure into a unified civil procedure system, which directly clashed with the federal courts' preservation of the traditional English division between the two bodies of procedural law. The inevitable result was confusion and chaos in the federal courts, particularly as interstate commerce escalated with the Second Industrial Revolution
and an increasing number of cases between citizens of different states were heard in federal courts under diversity jurisdiction
.
Frustration with the status quo caused the American Bar Association
to launch a nationwide movement for reform of federal civil procedure in 1911. After years of bitter infighting within the American bench and bar, the federal procedural reform movement culminated in the enactment of the Rules Enabling Act
on June 19, 1934.
The Supreme Court at first took little interest in exercising the new powers granted to the Court by the Act. Then in January 1935, Charles Edward Clark
, the dean of Yale Law School
, published an article arguing that federal procedural reform had to include a full merger of law and equity, as had occurred in many code procedure states. This article in turn inspired U.S. Attorney General William D. Mitchell
to write a letter to Chief Justice Charles Evans Hughes
in favor of procedural reform. The Supreme Court appointed an Advisory Committee to draft what would become the Federal Rules of Civil Procedure
on June 3, 1935. Mitchell was appointed as the Advisory Committee's first chairman (a position he would hold until his death in 1955) and Clark was appointed as the Committee's Reporter. The Advisory Committee's initial membership in 1935 included several prominent lawyers and politicians of the era, including George W. Wickersham
, Armistead Mason Dobie
, George Donworth
, and Scott Loftin
. Other prominent persons who were appointed later to the Advisory Committee included George W. Pepper
, Samuel Marion Driver
, and Maynard Pirsig
.
The Advisory Committee first prepared two preliminary drafts for its own use, then eventually printed and circulated three drafts nationwide, in May 1936, April 1937, and November 1937. The third report was the final one, which the U.S. Supreme Court reviewed, revised, and adopted on December 20, 1937. There was significant opposition to the new rules in Congress and hearings were held by both House and Senate committees, but the Rules Enabling Act required Congress to affirmatively override the Supreme Court's adoption of rules pursuant to the Act. Congress recessed in June 1938 with neither house having taken a floor vote on the issue, and accordingly, the Federal Rules of Civil Procedure automatically went into effect on September 16, 1938. The Rules unified law and equity and replaced common law and code pleading with a uniform system of modern notice pleading in all federal courts. There are exceptions to the types of cases that the FRCP now control but they are few in number and somewhat esoteric (e.g., "prize
proceedings in admiralty
").
The FRCP drafters were heavily influenced by the elegance of civil procedure in certain code pleading states, particularly California
and Minnesota
. However, the FRCP went to a new system now called "notice pleading," based on the idea that a complaint should merely give "notice" that the defendant is being sued, and allow the plaintiff to use the machinery of the courts to compel discovery of evidence from the defendant which would help the plaintiff prove his case. And of course, the defendant could compel discovery of evidence from the plaintiff to support his defenses. The FRCP also introduced a number of innovations such as Rule 16 pretrial conferences, which gave judges a method for managing caseloads more aggressively and urging parties to reach settlements.
Having completed its initial task, the Advisory Committee survived for almost twenty years. In 1941, 1946, and 1948, the Supreme Court adopted the Committee's proposed revisions to the FRCP, but for reasons that were never disclosed, the Supreme Court never adopted the Committee's 1955 revisions, and discharged the Committee instead on October 1, 1956.
The ABA and numerous other groups lobbied for some kind of committee to take over the task of maintaining the FRCP and other federal procedural rules. In 1958, Congress amended the act creating the Judicial Conference of the United States
so that it would have the power to advise the Supreme Court about revisions to procedural rules. The Judicial Conference then appointed a Standing Committee to handle that task, which in turn appointed an advisory committee for each set of federal procedural rules, including the FRCP. Thus, since 1958, the Advisory Committee on Civil Rules has been in charge of drafting revisions to the FRCP.
systems, although significant modifications were necessary because the federal courts are courts of limited jurisdiction, while state courts have general jurisdiction over innumerable types of matters that are usually beyond the jurisdiction of federal courts (traffic, family, probate, and so on).
Today, one surviving legacy of the old Conformity Act is that the FRCP is notoriously vague about certain procedural details. For example, Rules 7, 10, and 11 do not list all the documents that should be filed with a motion, nor do they contain a complete set of requirements for how they should be formatted, and Rule 6 does not contain a complete motion briefing schedule (apart from the general requirement that a notice of motion and supporting motion papers must be filed and served at least 14 days ahead of the hearing). This compromise allowed each federal district court to supplement the FRCP by promulgating local rules which track state court motion practice to the extent compatible with the FRCP. But in turn, the FRCP did not fully accomplish its objective of procedural uniformity. Thus, while virtually all U.S. lawyers understand the general principles of a FRCP 12(b)(6) motion to dismiss or a FRCP 56 motion for summary judgment, the actual mechanical details of making and opposing motions continue to vary dramatically from one federal district court to the next.
, Illinois
and New York
are notable in that almost all of their sui generis
civil procedure systems are codified in statutory law, not in rules promulgated by the state supreme court
or the state bar association. The position taken by these states is that to protect the rights of the citizens of a representative democracy
, civil procedure should be directly managed by legislators elected by the people on a frequent basis, not judges who are subject only to relatively infrequent retention elections (California) or direct elections (Illinois and New York). The other problem with having judges manage civil procedure rules is that they are usually too busy with their regular caseloads to directly draft new or amended rules themselves. As noted above, most of the real work is delegated to appointed advisory committees.
The opposite viewpoint, as represented by the FRCP and its state counterparts (this was also an express position of the federal civil procedure reform movement), is that civil procedure is a judicial function reserved to the judiciary under the rule of separation of powers
; legislatures are often too congested and gridlocked to make timely amendments to civil procedure statutes (as evidenced by the chaos and delays surrounding the statutory adoption of the Federal Rules of Evidence); and many legislators are nonlawyers who do not understand the urgent need to constantly revise and improve civil procedure rules. Thus, the development of state statutory civil procedure law is often haphazard and chaotic.
Another reason for why many states have not adopted the FRCP is that they have borrowed, by occasional statutory acts, the most innovative parts of the FRCP for their civil procedure systems, while maintaining the general principle that the legislature should manage civil procedure. For example, the FRCP's liberal discovery rules heavily influenced the California Civil Discovery Act of 1957 as well as its replacement, the Civil Discovery Act of 1986. Thus, by fixing the most archaic and frustrating parts of their procedural systems, they have obviated the need for complete reform, which would also necessitate retraining all their lawyers and judges.
Confusingly, Kansas
and North Carolina
have "Rules of Civil Procedure" which are actually enacted statutes, not rules promulgated by their state supreme courts.
A few states have adopted the general principle that civil procedure should be established in court rules, not civil procedure statutes, but have refused to adopt the FRCP. For example, Rhode Island has its own Civil Court Rules of Procedure.
, heavy reliance on live testimony obtained at deposition
or elicited in front of a jury
, and aggressive pretrial "law and motion" practice designed to result in a pretrial disposition (that is, summary judgment
) or a settlement. U.S. courts pioneered the concept of the opt-out class action
, by which the burden falls on class members to notify the court that they do not wish to be bound by the judgment, as opposed to opt-in class actions, where class members must join into the class. Another unique feature is the so-called American Rule
under which parties generally bear their own attorneys' fees (as opposed to the English Rule of "loser pays"), though American legislators and courts have carved out numerous exceptions.
, Maryland
, New Hampshire
, New Mexico
, Rhode Island
, and Washington.
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
, the 50 state court
State court
In the United States, a state court has jurisdiction over disputes with some connection to a U.S. state, as opposed to the federal government. State courts handle the vast majority of civil and criminal cases in the United States with minimal federal court supervision.- Types of state courts...
systems, and in the territorial courts. Like much of American law
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
, civil procedure is not reserved to the federal government in the Constitution. As a result, each state is free to operate its own system of civil procedure independent of her sister states and the federal court system.
History
Early federal and state civil procedure in the United States was rather ad hoc and was based on traditional common law procedure but with much local variety. There were varying rules that governed different types of civil cases such as "actions" at law or "suits" in equity or in admiralty; these differences grew from the history of "law" and "equity" as separate court systems in English law. Even worse, discovery was generally unavailable in actions at law. In order to obtain discovery, a party to a legal action had to bring a collateral proceeding, a bill in equity in aid of discovery, just to obtain essential documents or testimony from the opposing party.Procedure in the early federal courts was rather incoherent. The Process Act of 1792 authorized the federal courts to write their own procedural rules for everything but actions at law. In the context of actions at law, the Process Act of 1789 was so poorly written that it forced a federal court sitting in a state to apply the common law rules of pleading and procedure that were in effect in the state at the time it joined the Union, regardless of whether the state had modified or revised its civil procedure system since. In other words, even though a state's common law pleading system was always constantly evolving through case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
, the federal courts in that state were literally frozen in time. The Process Act did not speak to the problem of what law to apply in new states that joined the Union after the original Thirteen Colonies. In 1828, Congress enacted a law which stated that federal courts in new states would follow the civil procedure in effect at the time those states joined the Union.
Unfortunately for the federal courts, state civil procedure law began to diverge dramatically in the mid-19th century. In the 1840s, the law reformer David Dudley Field II launched a movement away from common law pleading and towards what came to be called "code pleading." Common law pleading operated under ad hoc procedures that developed haphazardly through case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
. In other words, a particular procedure was followed just because some (often ancient) decision said so, but none of those decisions were looking at the "big picture" to see if the entire procedural system made sense. In contrast, code pleading was carefully designed, at least in theory, with the entire lifecycle of a case in mind so that it would be simple, elegant, and logical, and was implemented by the enacting of a "code of civil procedure" by the state legislature. Eventually, 24 states enacted versions of the Field Code in part or in whole.
By the late 19th century, lawyers were becoming very frustrated with having to follow procedures that had been obsolete in their states for decades every time they litigated actions at law in federal courts. In response, Congress finally enacted the Conformity Act of 1872, which directed federal courts to conform their procedure in such actions to the current practice in the states in which they were sitting. Federal courts were allowed to continue to develop the federal common law of evidence (most of which was replaced a century later by the Federal Rules of Evidence
Federal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....
).
However, allowing federal courts to conform to current state procedure still did not solve the federal courts' problems with actions at law, because by the turn of the 20th century, the U.S. was a mix of common law and code procedure states. Even worse, many code procedure states had merged law and equity procedure into a unified civil procedure system, which directly clashed with the federal courts' preservation of the traditional English division between the two bodies of procedural law. The inevitable result was confusion and chaos in the federal courts, particularly as interstate commerce escalated with the Second Industrial Revolution
Second Industrial Revolution
The Second Industrial Revolution, also known as the Technological Revolution, was a phase of the larger Industrial Revolution corresponding to the latter half of the 19th century until World War I...
and an increasing number of cases between citizens of different states were heard in federal courts under diversity jurisdiction
Diversity jurisdiction
In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court has the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are...
.
Frustration with the status quo caused the American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
to launch a nationwide movement for reform of federal civil procedure in 1911. After years of bitter infighting within the American bench and bar, the federal procedural reform movement culminated in the enactment of the Rules Enabling Act
Rules Enabling Act
The Rules Enabling Act is an Act of Congress that gave the judicial branch the power to promulgate the Federal Rules of Civil Procedure. Amendments to the Act allowed for the creation of the Federal Rules of Criminal Procedure and other procedural court rules...
on June 19, 1934.
The Supreme Court at first took little interest in exercising the new powers granted to the Court by the Act. Then in January 1935, Charles Edward Clark
Charles Edward Clark
Charles Edward Clark was a federal judge on the United States Court of Appeals for the Second Circuit from 1939 to 1963. A native of Connecticut, Clark attended Yale College and Yale Law School...
, the dean of Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
, published an article arguing that federal procedural reform had to include a full merger of law and equity, as had occurred in many code procedure states. This article in turn inspired U.S. Attorney General William D. Mitchell
William D. Mitchell
William DeWitt Mitchell was appointed to the position of U.S. Solicitor General by Calvin Coolidge on June 4, 1925, which he held until he was appointed to the position of U.S. Attorney General for the entirety of Herbert Hoover's Presidency.Born in Winona, Minnesota to William B...
to write a letter to Chief Justice Charles Evans Hughes
Charles Evans Hughes
Charles Evans Hughes, Sr. was an American statesman, lawyer and Republican politician from New York. He served as the 36th Governor of New York , Associate Justice of the Supreme Court of the United States , United States Secretary of State , a judge on the Court of International Justice , and...
in favor of procedural reform. The Supreme Court appointed an Advisory Committee to draft what would become the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
on June 3, 1935. Mitchell was appointed as the Advisory Committee's first chairman (a position he would hold until his death in 1955) and Clark was appointed as the Committee's Reporter. The Advisory Committee's initial membership in 1935 included several prominent lawyers and politicians of the era, including George W. Wickersham
George W. Wickersham
George Woodward Wickersham was an American lawyer and Presidential Cabinet Secretary.-Biography:Born in Pittsburgh, Pennsylvania, he graduated from the University of Pennsylvania...
, Armistead Mason Dobie
Armistead Mason Dobie
Armistead Mason Dobie was a law professor and United States federal judge.-University leader:A native of Norfolk, Virginia, Dobie received a B.A. from the University of Virginia in 1901, an M.A. from the same institution in 1902, and an LL.B. from the University of Virginia School of Law in 1904....
, George Donworth
George Donworth
George Donworth was a United States federal judge.Born in Machias, Maine, Donworth received an A.B. from Georgetown University in 1881, and read law to enter the bar in 1883...
, and Scott Loftin
Scott Loftin
Scott Marion Loftin was a U.S. Senator from Florida who served as a Democrat in 1936.Born in Montgomery, Montgomery County, Alabama; moved to Pensacola, Florida, with his parents in 1887; attended the public schools and Washington and Lee University School of Law at Lexington, Virginia; studied...
. Other prominent persons who were appointed later to the Advisory Committee included George W. Pepper
George W. Pepper
George Wharton Pepper was an American lawyer, law professor, and Republican politician from Philadelphia, Pennsylvania...
, Samuel Marion Driver
Samuel Marion Driver
Samuel Marion Driver was a United States federal judge.Born in Wamic, Oregon, Driver received an LL.B. from the University of Washington School of Law in 1916. He was in private practice in Waterville, Washington from 1916 to 1923. He was in the United States Army Corporal, 91st Division from 1918...
, and Maynard Pirsig
Maynard Pirsig
Maynard Pirsig was an American legal scholar and academic. Educated at the University of Minnesota and the University of Minnesota Law School, he was Professor and Dean of Law at Minnesota from 1948 to 1955. He was later Professor of Law at the William Mitchell College of Law...
.
The Advisory Committee first prepared two preliminary drafts for its own use, then eventually printed and circulated three drafts nationwide, in May 1936, April 1937, and November 1937. The third report was the final one, which the U.S. Supreme Court reviewed, revised, and adopted on December 20, 1937. There was significant opposition to the new rules in Congress and hearings were held by both House and Senate committees, but the Rules Enabling Act required Congress to affirmatively override the Supreme Court's adoption of rules pursuant to the Act. Congress recessed in June 1938 with neither house having taken a floor vote on the issue, and accordingly, the Federal Rules of Civil Procedure automatically went into effect on September 16, 1938. The Rules unified law and equity and replaced common law and code pleading with a uniform system of modern notice pleading in all federal courts. There are exceptions to the types of cases that the FRCP now control but they are few in number and somewhat esoteric (e.g., "prize
Prize (law)
Prize is a term used in admiralty law to refer to equipment, vehicles, vessels, and cargo captured during armed conflict. The most common use of prize in this sense is the capture of an enemy ship and its cargo as a prize of war. In the past, it was common that the capturing force would be allotted...
proceedings in admiralty
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
").
The FRCP drafters were heavily influenced by the elegance of civil procedure in certain code pleading states, particularly California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
and Minnesota
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
. However, the FRCP went to a new system now called "notice pleading," based on the idea that a complaint should merely give "notice" that the defendant is being sued, and allow the plaintiff to use the machinery of the courts to compel discovery of evidence from the defendant which would help the plaintiff prove his case. And of course, the defendant could compel discovery of evidence from the plaintiff to support his defenses. The FRCP also introduced a number of innovations such as Rule 16 pretrial conferences, which gave judges a method for managing caseloads more aggressively and urging parties to reach settlements.
Having completed its initial task, the Advisory Committee survived for almost twenty years. In 1941, 1946, and 1948, the Supreme Court adopted the Committee's proposed revisions to the FRCP, but for reasons that were never disclosed, the Supreme Court never adopted the Committee's 1955 revisions, and discharged the Committee instead on October 1, 1956.
The ABA and numerous other groups lobbied for some kind of committee to take over the task of maintaining the FRCP and other federal procedural rules. In 1958, Congress amended the act creating the Judicial Conference of the United States
Judicial Conference of the United States
The Judicial Conference of the United States, formerly known as Conference of Senior Circuit Judges, was created by the United States Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial courts in the United States...
so that it would have the power to advise the Supreme Court about revisions to procedural rules. The Judicial Conference then appointed a Standing Committee to handle that task, which in turn appointed an advisory committee for each set of federal procedural rules, including the FRCP. Thus, since 1958, the Advisory Committee on Civil Rules has been in charge of drafting revisions to the FRCP.
Federal and state procedural uniformity
An express objective of the early 20th-century reformers was to use the development of new federal procedural rules to facilitate uniformity of civil procedure in the separate states. By 1959, 17 states had adopted versions of the FRCP in part or whole as their civil procedure systems. Today, 35 states have adopted the FRCP to govern civil procedure in their state courtState court
In the United States, a state court has jurisdiction over disputes with some connection to a U.S. state, as opposed to the federal government. State courts handle the vast majority of civil and criminal cases in the United States with minimal federal court supervision.- Types of state courts...
systems, although significant modifications were necessary because the federal courts are courts of limited jurisdiction, while state courts have general jurisdiction over innumerable types of matters that are usually beyond the jurisdiction of federal courts (traffic, family, probate, and so on).
Today, one surviving legacy of the old Conformity Act is that the FRCP is notoriously vague about certain procedural details. For example, Rules 7, 10, and 11 do not list all the documents that should be filed with a motion, nor do they contain a complete set of requirements for how they should be formatted, and Rule 6 does not contain a complete motion briefing schedule (apart from the general requirement that a notice of motion and supporting motion papers must be filed and served at least 14 days ahead of the hearing). This compromise allowed each federal district court to supplement the FRCP by promulgating local rules which track state court motion practice to the extent compatible with the FRCP. But in turn, the FRCP did not fully accomplish its objective of procedural uniformity. Thus, while virtually all U.S. lawyers understand the general principles of a FRCP 12(b)(6) motion to dismiss or a FRCP 56 motion for summary judgment, the actual mechanical details of making and opposing motions continue to vary dramatically from one federal district court to the next.
Court rules or statutes?
CaliforniaCalifornia
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
and New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
are notable in that almost all of their sui generis
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
civil procedure systems are codified in statutory law, not in rules promulgated by the state supreme court
State supreme court
In the United States, the state supreme court is the highest state court in the state court system ....
or the state bar association. The position taken by these states is that to protect the rights of the citizens of a representative democracy
Representative democracy
Representative democracy is a form of government founded on the principle of elected individuals representing the people, as opposed to autocracy and direct democracy...
, civil procedure should be directly managed by legislators elected by the people on a frequent basis, not judges who are subject only to relatively infrequent retention elections (California) or direct elections (Illinois and New York). The other problem with having judges manage civil procedure rules is that they are usually too busy with their regular caseloads to directly draft new or amended rules themselves. As noted above, most of the real work is delegated to appointed advisory committees.
The opposite viewpoint, as represented by the FRCP and its state counterparts (this was also an express position of the federal civil procedure reform movement), is that civil procedure is a judicial function reserved to the judiciary under the rule of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
; legislatures are often too congested and gridlocked to make timely amendments to civil procedure statutes (as evidenced by the chaos and delays surrounding the statutory adoption of the Federal Rules of Evidence); and many legislators are nonlawyers who do not understand the urgent need to constantly revise and improve civil procedure rules. Thus, the development of state statutory civil procedure law is often haphazard and chaotic.
Another reason for why many states have not adopted the FRCP is that they have borrowed, by occasional statutory acts, the most innovative parts of the FRCP for their civil procedure systems, while maintaining the general principle that the legislature should manage civil procedure. For example, the FRCP's liberal discovery rules heavily influenced the California Civil Discovery Act of 1957 as well as its replacement, the Civil Discovery Act of 1986. Thus, by fixing the most archaic and frustrating parts of their procedural systems, they have obviated the need for complete reform, which would also necessitate retraining all their lawyers and judges.
Confusingly, Kansas
Kansas
Kansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
and North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
have "Rules of Civil Procedure" which are actually enacted statutes, not rules promulgated by their state supreme courts.
A few states have adopted the general principle that civil procedure should be established in court rules, not civil procedure statutes, but have refused to adopt the FRCP. For example, Rhode Island has its own Civil Court Rules of Procedure.
Notable features
Generally, American civil procedure has several notable features, including extensive pretrial discoveryDiscovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
, heavy reliance on live testimony obtained at deposition
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
or elicited in front of a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
, and aggressive pretrial "law and motion" practice designed to result in a pretrial disposition (that is, summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
) or a settlement. U.S. courts pioneered the concept of the opt-out class action
Class action
In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued...
, by which the burden falls on class members to notify the court that they do not wish to be bound by the judgment, as opposed to opt-in class actions, where class members must join into the class. Another unique feature is the so-called American Rule
American rule
"American rule" may refer to one of several concepts in law, in contrast to the English rule:* The American rule for successive assignments of rights* The American rule for attorney's fees...
under which parties generally bear their own attorneys' fees (as opposed to the English Rule of "loser pays"), though American legislators and courts have carved out numerous exceptions.
State civil procedure rules or codes
Note that the following states do not have a single code or set of civil procedure rules for their trial courts: DelawareDelaware
Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
, Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
, New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
, New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...
, Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
, and Washington.
- Alabama Rules of Civil Procedure
- Alaska Rules of Civil Procedure
- Arizona Rules of Civil Procedure
- Arkansas Rules of Civil Procedure
- California Code of Civil ProcedureCalifornia Code of Civil ProcedureThe California Code of Civil Procedure contains most California statutes that govern the filing of lawsuits, legal notices that must be given in a variety of circumstances, and many other procedural aspects of California civil law, including the statutes of limitations that control the period of...
- Colorado Rules of Civil Procedure
- Connecticut Practice Book
- Delaware civil procedure
- Florida Rules of Civil ProcedureFlorida Rules of Civil ProcedureThe Florida Constitution, in Article V, Section 2, vests the power to adopt rules for the "practice and procedure in all courts" in the Florida Supreme Court, which adopted the Florida Rules of Civil Procedure in March 1954...
- Georgia civil procedure (Official Code of Georgia Annotated, Title 9, Civil Practice)
- Hawaii Rules of Civil Procedure
- Idaho Rules of Civil Procedure
- Illinois Code of Civil Procedure
- Iowa Rules of Civil Procedure
- Kansas Rules of Civil Procedure (enacted as Article 2 of Chapter 60, K.S.A.)
- Kentucky Rules of Civil Procedure
- Louisiana Code of Civil Procedure
- Maine Rules of Civil Procedure
- Maryland civil procedure
- Massachusetts Rules of Civil Procedure
- Michigan civil procedure (Chapter 2, Michigan Court Rules)
- Minnesota Rules of Civil Procedure
- Mississippi Rules of Civil Procedure
- Missouri civil procedure (Rules 41 to 129 of the Missouri Supreme Court Rules)
- Montana civil procedure (Title 25, Montana Code Annotated)
- Nebraska civil procedure (Chapter 25, Nebraska Revised Statutes)
- Nevada Rules of Civil Procedure
- New Hampshire civil procedure
- New Jersey civil procedure (Part IV of the New Jersey Rules of Court)
- New Mexico civil procedure
- New York Civil Practice Law and Rules
- North Carolina Rules of Civil Procedure (enacted as Chapter 1A, North Carolina General Statutes)
- North Dakota Rules of Civil Procedure
- Ohio Rules of Civil Procedure
- Oklahoma civil procedure (Title 12, Oklahoma Statutes)
- Oregon Rules of Civil Procedure
- Pennsylvania Rules of Civil Procedure
- Rhode Island civil procedure
- South Carolina Rules of Civil Procedure
- South Dakota civil procedure (Chapter 15-6, South Dakota Codified Laws)
- Tennessee Rules of Civil Procedure
- Texas Rules of Civil Procedure
- Utah Rules of Civil Procedure
- Vermont Rules of Civil Procedure
- Virginia Civil ProcedureVirginia Civil ProcedureVirginia civil procedure is the body of law that sets out the rules and standards that Virginia courts follow when adjudicating civil lawsuits .-The Virginia Court System:...
(Part Three of the Rules of the Supreme Court of Virginia) - Washington civil procedure
- Wisconsin civil procedure (Chapters 801 to 847, Wisconsin Statutes)
- Wyoming Rules of Civil Procedure
Territorial civil procedure rules
- Guam Rules of Civil Procedure
- Puerto Rico Rules of Civil Procedure