civil procedure

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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 class against another and are to be distinguished from "criminal trials," in which the state prosecutes an individual for violation of criminal law.

Federal and State Civil Procedure

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 (FRCP); the state courts follow their own state rules of civil procedure. Generally, state civil procedure mirrors many of the federal rules.

In federal courts, evidentiary rules are governed by the Federal Rules of Evidence. The state courts follow their own state rules of evidence.

In 1934, Congress passed 28 U.S. Code § 2072--also called the the Rules Enabling Act--which "gave the Supreme Court the power to make rules of procedure and evidence for federal courts as long as they did not 'abridge, enlarge, or modify any substantive right.” 

Procedural Law and Substantive Law

Court procedures stem from the Fifth Amendment's and Fourteenth Amendment's guarantees of due process. Both Amendments contain the Due Process Clause, which states no one shall be "deprived of life, liberty or property without due process of law."

While the words “due process” suggest a concern with procedure rather than substance, the Due Process Clause is widely understood to guarantee both procedural due process and substantive due process.

"Procedural law," which refers to the guarantees of certain procedural methods and rules is distinguished from "substantive law," which refers to the rights and duties of everyday conduct, such as those related to contract law and 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.

Pre-Trial Relevance

Although most 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. However, there are still rules of civil procedure which govern pre-trial activities. FRCP Rules 3 - 16 all govern certain parts of the pre-trial process.

Under the United States judicial system, the initial burden is on the plaintiff to file suit in court. The plaintiff also has the initial burden of demonstrating a legitimate claim.

For more on civil procedure, see this Fordham Law Review article, and the Denver University Law Review article

Federal Material

U.S. Constitution and Federal Statutes
  • 28 U.S.C. § 1652 - Rules of Decision Act
  • 28 U.S.C. § 2072 - Rules Enabling Act
  • Search the CRS Annotated Constitution
Federal Judicial Decisions and Rules
  • Federal Rules of Civil Procedure (including forms)
  • Federal Rules of Evidence
U.S. Supreme Court:

State Material

State Statutes
  • State Statutes Dealing with Civil Procedure
  • State Statutes Dealing with Evidence
  • Uniform Rules of Evidence
State Judicial Decisions

N.Y. Court of Appeals:

  • Recent Decisions on Civil Procedure
  • Search Recent Decisions on a Discrete Civil Procedure Topic
  • Appellate Decisions from Other States

Key Internet Sources

  • ABA Section of Litigation
  • Federal Judicial Center Publications
  • Senate Judiciary Committee
  • House Judiciary Committee
  • 'Lectric Law Library: Litigation Forms

[Last updated in July of 2022 by the Wex Definitions Team]