What is Civil Procedure?
Procedure v. Substance
- But many cases are won or lost on procedure, not substance
- Substance: Rules determining underlying rights and obligations in dispute
- Procedure: Rules determining how the court manages the dispute
- But procedural rules may also be rooted in fundamental rights, especially Due Process
Procedure as Aspect of Due Process
- 5th Amendment: applies to federal government
- 14th Amendment: applies to state government
- Opportunity to be heard
Courts as Socio-Legal Institutions
The Judicial Process
Wigmore, “The Judicial Function”, in Science of Legal Method at xxviii (1921):
[The] process .. of deciding, by an agent of state power, a controversy existing between two individuals (or the State and an individual), by rational (not merely personal) considerations, purporting to rest on justice and law (i.e. the community’s general sense of order).
Elements of Wigmore’s definition:
- State power (authority)
- Two (or more) parties
- Rational/Impersonal (cf. Max Weber)
- Justice and law (community norms)
The Legislative Process
The process of (1) formulating a rule in more or less general terms, (2) because of certain policies deliberately deemed to be controlling; i.e. (1) formulation (2) to effect a felt purpose.
Law as a Social Construct & Practice
Disputes & Claims
Felstiner, Abel, & Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 Law & Society Review 631 (1980-81)
Naming: Recognizing an injurious experience as such
Blaming: Translating experience into a grievance
Claiming: Transformaing a grievance into a dispute, i.e. claim for relief/remedy
- Multiple, co-existing, sources of law
- May be in tension or conflict
- Sometimes one may over-ride or limit another
- Example: Internal rules of a private organization (corporation, labor union, social club, homeowners’ association, etc.) may be subject to requirements or limitations under state or federal law.
- Applicability may depend on time/place/activity/dispute
Religious law governs religious matters (e.g. appointment of clergy), without interference by secular law.
But secular law may govern matters affecting secular rights and liabilities of religious institutions (e.g. ownership of church property).
Official courts are not the only, nor necessarily the primary, institution for dispute resolution.
Even disputes that might be within the jurisdiction of official courts are frequently resolved by other means:
- Arbitration and mediation
- Social sanctions (shunning, gossip, etc.)
Courts in the U.S.
Dual Court Systems: State & Federal
Dual sovereignty of federal and state governments
- Supremacy clause: Federal government is supreme within the sphere of federal powers as allocated under the Constitution.
- 10th amendment: State governments retain powers not allocated to federal government under the Constitution.
Overlapping Subject Matter Jurisdiction
State courts may usually decide cases that involve matters of federal law.
- Exceptions for special areas of federal law where Congress or Courts have vested federal courts with exclusive jurisdiction
Federal courts may sometimes decide cases that involve matters of state law
- Diversity jurisdiction: Cases with state law claims between parties who are citizens of different states
- Supplemental jurisdiction: Cases with both federal and state law claims arising from same dispute
U.S. Constitution, Article III, sec. 1
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
The Constitution mandates only a single federal court, the Supreme Court.
- Congress early on established a system of lower courts to hear most cases in the initial instance, limiting the Supreme Court’s jurisdiction primarily to appeals from those lower courts.
- The system and organization of lower courts has varied historically.
- The present system organizes the federal courts into three hierarchical levels
Article III Courts: Structure
U.S. District Courts
One or more in each state.
- NC has three federal court districts (Eastern, Middle, Western)
U.S. Courts of Appeal
12 Circuits defined by geographical coverage
- 1st through 11th Circuits cover multiple states
- Appeals from U.S. District Courts within the geographic region of the Circuit
- N.C. is within the 4th Circuit, which also covers Maryland, Virginia, West Virginia, and South Carolina
- D.C. Circuit covers the District of Columbia
- Appeals from U.S. District Court for District of D.C.
- Appeals from certain federal administrative agencies, regardless of where those cases originated (e.g. appeals from the NLRB).
- Federal Circuit (based in DC)
- Appeals from certain federal administrative tribunals (e.g. Court of Federal Claims, Merit Systems Protection Board, Court of Appeals for Veterans Claims, Trademark Trial & Appeal Board, Board of Patent Appeals & Interferences, Board of Contract Appeals, International Trade Commission)
- Appeals from U.S. District Courts in cases arising under certain federal laws (e.g. Patents)
Appeals are typically heard by a panel of 3 judges.
En banc review:
- Heard by all active judges on the court (total number varies by Circuit)
- In the 9th Circuit, an en banc court consists of 11 judges
- Either by request of a party or at court’s own initiative
- Requires affirmative vote by majority of court’s active judges
U.S. Supreme Court
U.S. Constitution, Article III, sec. 2:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Composition (not set by Constitution)
- 1 Chief Justice
- 8 Associate Justices
- Parties seeking appellate review by the Supreme Court must typically file a Petition for Certiorari. If at least 4 Justices agree to hear the case, the Court issues a Writ of Certiorari.
- The Court typically grants Certiorari to resolve splits among the Federal Courts of Appeals on important questions of federal law
- Some federal statutes provide for an automatic right to appellate review by the Supreme Court
- Review of state court decisions
- The Supreme Court may review decisions by a state’s highest court, but only where there is an issue of federal law (substantive or procedural) at stake.
Constitution (Article III, sec. 2) gives the Supreme Court original jurisdiction over certain cases.
Article III Courts: Appointment of Judges
Judges are appointed by President, with confirmation by Senate.
- Lifetime appointment, subject to removal by impeachment
In addition to the federal courts established under Article III, there are a variety of adjudicatory tribunals as part of the federal administrative state. These tribunals perform quasi-judicial functions, and operate much like courts, though often with less formality in their procedures.
Because these administrative tribunals are established to review actions by administrative agencies to which Congress has delegated legislative authority under Article I, they are often referred to as “Article I Courts”.
The presiding officers on these tribunals are often called Administrative Law Judges (though in some agencies, they have other titles such as Hearing Officer). Unlike federal judges appointed under Article III, sec. 1, ALJs do not enjoy life tenure.
The Administrative Law and Federal Courts courses address the Constitutional status and operation of these tribunals.
- NC: Superior Court
- Other states use different names (e.g. PA: Court of Common Pleas; NY: Supreme Court)
Typically organized by county or multi-county district.
Most states also have “inferior” courts, e.g. small claims courts for disputes over small dollar amounts, or special courts for limited types of issues.
- N.C.: District Courts
- Typically, state procedure allows parties to seek a de novo trial in superior trial court
Most states follow the federal system in having two levels of appellate court
In some states, there is a single intermediate-level appellate court, which hears direct appeals from all trial-level courts.
In other states, there are multiple intermediate-level appellate courts
- Geographic division (e.g. NY & CA)
- Multiple intermediate appellate courts each covering a geographical territory (similar to the U.S. Courts of Appeal)
- Subject Matter division
- e.g. PA: Superior Court: hears most appeals; Commonwealth Court: hears appeals in which the state is a party, and cases under certain state laws
Sometimes known by other name (e.g. NY Court of Appeals; Mass. Supreme Judicial Court)
Appellate jurisdiction is typically discretionary, as with U.S. Supreme Court.
- Automatic right to review in some circumstances
- NC: constitutional question; dissent in Court of Appeals; Utilities Commission General Rate Cases; Bar Exam; Judicial Standards
May also have original jurisdiction over certain cases, as provided under state constitution or by statute.
Appointment of Judges
Varies by state
Direct Election (21 states)
May be partisan or nonpartisan.
- NC changed from nonpartisan to partisan elections in 2016-17.
In some states (e.g. CA, PA), after serving an initial term, judges face a retention election for an additional term
In other states (e.g. NY, NC), an incumbent judge wishing to serve another term must face another contested election.
Merit Selection (“Missouri Plan”)
A special non-partisan commission recommends a list of potential judges, from which the governor selects a nominee for approval by the legislature.
In some states (e.g. CO), after an initial period of service (typically one or two years), judges face a retention election.
In other states (e.g. DE), after serving a full term, judges may be reappointed through the same merit selection process.
In some states (e.g. NY), judges on some courts are elected while others are appointed.
Outline of a Civil Action
Disputes emerge out of everyday transactions or events. A grievance arises when someone perceives that they have been harmed and that someone else is responsible.
The transformation of a grievance into a legal case is a process:
- The aggrieved person must decide, in the first instance, to consult an attorney.
- This is a function of legal consciousness: beliefs, attitudes & practices about the law (whether the law recognizes a particular grievance as a “legal” claim, whether the legal system will provide a satisfactory remedy, etc.)
- Legal consciousness emerges and evolves out of socialization and experience.
- The ideas and practices that constitute legal consciousness may not always accord with how lawyers, judges, etc. understand the law.
- The attorney helps translate the client’s problem into legal categories: “negligence”, “breach of contract”, “trespass”, etc.
- These may or may not accord with the legal categories that the client ascribed to the grievance.
- The attorney also helps client identify potential defendants, available remedies, etc.
- Again, these may or may not accord with the client’s initial perception of who was responsible, what remedy they seek, etc.
Choice of Forum
Choice of court system (Federal or State)
Does the court have authority to decide this type of case?
Federal courts have limited subject-matter jurisdiction, defined by Constitution and statute
Some states have special courts (trial or appellate) for particular types of case
- e.g. NC Business Court, small claims court, probate court, family court, etc.
Choice of court location
There are two dimensions to this choice.
Do courts (state or federal) in the state have authority to issue a decision binding on the parties?
Is this particular court (e.g. Middle District of NC; Guilford County Superior Court) a convenient forum for this action?
Choice of Law
Federal or state law (Erie doctrine)
Which state’s (or country’s) law
Scope of Suit
Combinging multiple claims and/or parties in the same action
Commencement of Action
Complaint and Answer
- Objections to form or content
- Requests to amend
- Procedural defects
- Legal deficiency
Disposition on the merits, based on evidence developed in discovery
Trial & Appeal
Court’s order deciding the case and (if judgment is in favor of plaintiff) granting a remedy
e.g. Judgment notwithstanding verdict, remittitur, etc.
Review by higher court
- Errors of law: de novo review
- Errors of fact: deferential review
Collecting money awarded in a judgment
Claim Preclusion (Res judicata)
Judgment in a case precludes the parties from asserting similar claims in another case
Issue Preclusion (Collateral estoppel)
Disposition of legal or factual issue in a case precludes parties (and sometimes others) from contesting the same issue in another case