Legal practice
Encyclopedia
Legal practice is sometimes used to distinguish the body of judicial or administrative precedent
s, rule
s, policies
, custom
s, and doctrine
s from legislative enactments such as statute
s and constitution
s which might be called "laws" in the strict sense of being commands to the general public, rather than only to a set of parties.
any case had to fit into a narrowly defined form of pleading usually called a "writ". By the time of Henry III
the number of such writs had grown to over 500, but even that many did not cover all the possible claims that people sought to make.
The Provisions of Oxford
in 1258 forbade the royal clerks to create any new writs. The result of this was that the courts began to adopt "fictions" such as imaginary parties or actors so that the facts of a case could be fit within one of the established forms, and the Writ of Trespass came to become the catchall form for most claims.
It is important to understand that, unlike much current practice, the writs of pleading were not court orders granting relief but the summons
, prepared by the plaintiff, filed with the court, and served on the respondent.
Seventh Amendment
:
.
New York State was the first to adopt a codification of legal forms and procedures, called the Field Code from its principal author, David Dudley Field II. Within a few years, most but not all other states adopted similar codes. One of the reforms made was to unite courts of law and equity. The reforms made it easier to get a case started without loading most of the argument and proof at the outset, and made discovery more important during the course of the case. However, there was opposition to the reforms, and resistance from the legal profession, including judges, prevented the codes from being implemented as intended.
These state codes were not considered unconstitutional because in the case of Barron v. Mayor of Baltimore
, 32 U.S. (7 Pet.) 243, the U.S. Supreme Court had held that adoption of the Bill of Rights
did not make the rights they protected federal questions that would overcome the omission in Article III of a jurisdiction of federal courts for cases between a citizen and his state.
pleading was more formal, traditional, and particular in its phrases and requirements. For example, a plaintiff bringing a trespass
suit would have to mention certain key words in his complaint or risk it being dismissed with prejudice. In contrast, the FRCP is based on a legal construction called notice pleading, which is less formal, created and modified by legal experts, and far less technical in requirements. In notice pleading, the same plaintiff bringing suit would not face dismissal for lack of the exact legal term, so long as the claim itself was legally actionable. The policy behind this change is to simply give "notice" of your grievances, and leave the details for later in the case. This acts in the interest of equity
by concentrating on the actual law and not the exact construction of pleas.
Thirty-five states have adopted versions of the federal rules as their own procedural code.
In addition to notice pleading, a minority of states (e.g., California
) use an intermediate system known as code pleading. Code pleading is an older system than notice pleading and is based on legislative statute
. It tends to straddle the gulf between obsolete common-law pleading and modern notice pleading. Code pleading places additional burdens on a party to plead the "ultimate facts" of its case, laying out the party's entire case and the facts or allegations underlying it. Notice pleading, by contrast, simply requires a "short and plain statement" showing only that the pleader is entitled to relief
. (FRCP 8(a)(2)). One important exception to this rule is that when a party alleges fraud
, that party must plead the fact
s of the alleged fraud with particularity. (FRCP 9(b)).
There has been some controversy over whether the FCRP violate the Eighth Amendment requirement of common law rules, but the usual answer has been that the changes are only in form and not in substance.
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
s, rule
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
s, policies
Policy
A policy is typically described as a principle or rule to guide decisions and achieve rational outcome. The term is not normally used to denote what is actually done, this is normally referred to as either procedure or protocol...
, custom
Custom (law)
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
s, and doctrine
Doctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
s from legislative enactments such as statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s and constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
s which might be called "laws" in the strict sense of being commands to the general public, rather than only to a set of parties.
Common law forms of pleading: Writs
In the legal practice that emerged in royal courts under Henry IIHenry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
any case had to fit into a narrowly defined form of pleading usually called a "writ". By the time of Henry III
Henry III of England
Henry III was the son and successor of John as King of England, reigning for 56 years from 1216 until his death. His contemporaries knew him as Henry of Winchester. He was the first child king in England since the reign of Æthelred the Unready...
the number of such writs had grown to over 500, but even that many did not cover all the possible claims that people sought to make.
The Provisions of Oxford
Provisions of Oxford
The Provisions of Oxford are often regarded as England's first written constitution ....
in 1258 forbade the royal clerks to create any new writs. The result of this was that the courts began to adopt "fictions" such as imaginary parties or actors so that the facts of a case could be fit within one of the established forms, and the Writ of Trespass came to become the catchall form for most claims.
It is important to understand that, unlike much current practice, the writs of pleading were not court orders granting relief but the summons
Summons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
, prepared by the plaintiff, filed with the court, and served on the respondent.
U.S. Constitution
The nonconflicting parts of the English and American common law and its forms of pleading were explicitly incorporated into the U.S. Constitution.Seventh Amendment
Seventh Amendment to the United States Constitution
The Seventh Amendment to the United States Constitution, which was ratified as part of the Bill of Rights, codifies the right to a jury trial in certain civil cases. However, in some civil cases, the Supreme Court has not incorporated the right to a jury trial to the states in the fashion which...
:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Field Code 1848
By the middle of the 19th century strong resistance developed to the rigidities of the common law forms of pleading brought over from England, whose monarchical forms often conflicted with U.S. republican law that made the people the sovereignSovereign
A sovereign is the supreme lawmaking authority within its jurisdiction.Sovereign may also refer to:*Monarch, the sovereign of a monarchy*Sovereign Bank, banking institution in the United States*Sovereign...
.
New York State was the first to adopt a codification of legal forms and procedures, called the Field Code from its principal author, David Dudley Field II. Within a few years, most but not all other states adopted similar codes. One of the reforms made was to unite courts of law and equity. The reforms made it easier to get a case started without loading most of the argument and proof at the outset, and made discovery more important during the course of the case. However, there was opposition to the reforms, and resistance from the legal profession, including judges, prevented the codes from being implemented as intended.
These state codes were not considered unconstitutional because in the case of Barron v. Mayor of Baltimore
Barron v. Baltimore
Barron v. Mayor of Baltimore, 32 U.S. 243 established a precedent on whether the United States Bill of Rights could be applied to state governments.John Barron co-owned a profitable wharf in the Baltimore harbor...
, 32 U.S. (7 Pet.) 243, the U.S. Supreme Court had held that adoption of the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
did not make the rights they protected federal questions that would overcome the omission in Article III of a jurisdiction of federal courts for cases between a citizen and his state.
Federal Rules 1938
Before the Federal Rules of Civil Procedure (FRCP) were enacted in 1938, common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
pleading was more formal, traditional, and particular in its phrases and requirements. For example, a plaintiff bringing a trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
suit would have to mention certain key words in his complaint or risk it being dismissed with prejudice. In contrast, the FRCP is based on a legal construction called notice pleading, which is less formal, created and modified by legal experts, and far less technical in requirements. In notice pleading, the same plaintiff bringing suit would not face dismissal for lack of the exact legal term, so long as the claim itself was legally actionable. The policy behind this change is to simply give "notice" of your grievances, and leave the details for later in the case. This acts in the interest of equity
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
by concentrating on the actual law and not the exact construction of pleas.
Thirty-five states have adopted versions of the federal rules as their own procedural code.
In addition to notice pleading, a minority of states (e.g., 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...
) use an intermediate system known as code pleading. Code pleading is an older system than notice pleading and is based on legislative statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
. It tends to straddle the gulf between obsolete common-law pleading and modern notice pleading. Code pleading places additional burdens on a party to plead the "ultimate facts" of its case, laying out the party's entire case and the facts or allegations underlying it. Notice pleading, by contrast, simply requires a "short and plain statement" showing only that the pleader is entitled to relief
Relief
Relief is a sculptural technique. The term relief is from the Latin verb levo, to raise. To create a sculpture in relief is thus to give the impression that the sculpted material has been raised above the background plane...
. (FRCP 8(a)(2)). One important exception to this rule is that when a party alleges fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
, that party must plead the fact
Fact
A fact is something that has really occurred or is actually the case. The usual test for a statement of fact is verifiability, that is whether it can be shown to correspond to experience. Standard reference works are often used to check facts...
s of the alleged fraud with particularity. (FRCP 9(b)).
There has been some controversy over whether the FCRP violate the Eighth Amendment requirement of common law rules, but the usual answer has been that the changes are only in form and not in substance.
See also
- List of legal doctrines
- Custom (law)Custom (law)Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
- Public policy (law)Public policy (law)In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
- Practice of lawPractice of lawIn its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister,...
- Stare decisisStare decisisStare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
- RegimeRegimeThe word regime refers to a set of conditions, most often of a political nature.-Politics:...