What is Civil Procedure?

Procedure v. Substance

Outcome determination
Primary rights

Procedure as Aspect of Due Process

Constitutional requirement

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:

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 legalities


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).

Multiple Institutions

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:

Courts in the U.S.

Dual Court Systems: State & Federal


Dual sovereignty of federal and state governments

Overlapping Subject Matter Jurisdiction

State courts may usually decide cases that involve matters of federal law.

Federal courts may sometimes decide cases that involve matters of state law

Federal Courts

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.

Article III Courts: Structure

U.S. District Courts

One or more in each state.

U.S. Courts of Appeal


12 Circuits defined by geographical coverage


Appeals are typically heard by a panel of 3 judges.

En banc review:

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)
Appellate Jurisdiction

Discretionary review

Original Jurisdiction

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.

Administrative Courts

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.

State Courts


Trial Courts

Nomenclature varies

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

Appellate Courts

Most states follow the federal system in having two levels of appellate court

Intermediate 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

Supreme Court

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.

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.

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.

Mixed systems

In some states (e.g. NY), judges on some courts are elected while others are appointed.

Outline of a Civil Action

Civil Action Flowchart

Precipitating incident

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:

Choice of Forum

Choice of court system (Federal or State)

Subject-Matter Jurisdiction

Does the court have authority to decide this type of case?

Choice of court location

There are two dimensions to this choice.

Personal Jurisdiction

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

Preliminary Motions



Pre-Trial Practice


Fact gathering

Summary Judgment

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

Post-Trial Motions

e.g. Judgment notwithstanding verdict, remittitur, etc.


Review by higher court


Collecting money awarded in a judgment

Future Litigation

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