civil procedure: an overview
Broadly speaking, civil procedure consists of the rules by which courts conduct civil trials. "Civil trials" concern the judicial resolution of claims by one individual or group against another and are to be distinguished from "criminal trials," in which the state prosecutes an individual for violation of criminal law.
"Procedure" is to be distinguished from "substantive law" in that substantive law defines the rights and duties of everyday conduct, such as in contract law or tort law.
A procedural system provides the mechanism for applying substantive law to real disputes. Such a system sets guidelines as to what information the judge or jury receives, how that information is to be presented, and by what standards of proof (e.g., "beyond a reasonable doubt," "by clear and convincing evidence," "by a preponderance of the evidence") the information will be adjudged. An effective procedural system ensures that similar cases will be treated similarly by the courts.
Although the majority of suits filed in the United States are settled before trial through negotiated settlements or arbitration, "civil procedure" strictly defined applies only in formal courts of law.
Under the U.S. "common law" system, the initial burden is on the complaining party (the "Plaintiff") to file suit in court. The Plaintiff also has the initial burden of demonstrating that she has a legitimate claim.
In the U.S., civil procedure usually takes the form of a series of rules and judicial practices. The federal courts follow the Federal Rules of Civil Procedure; the state courts follow their own state rules of civil procedure.
In federal courts, evidentiary rules are governed by the Federal Rules of Evidence. The state courts follow their own state rules of evidence.
Definition from Nolo’s Plain-English Law Dictionary
The rules set out in both state (usually Code of Civil Procedure) and federal (Federal Code of Procedure) laws that establish the format under which civil lawsuits are filed, pursued, and tried. Civil procedure refers only to form and procedure, and not to the substantive law that gives people the right to sue or defend a lawsuit.
Definition provided by Nolo’s Plain-English Law Dictionary.
August 19, 2010, 5:12 pm