add site
services
publishers
database
health videos
toolbar
stats
live show
health store
more stuff
JOIN/LOGIN
| advertise add site services publishers database health videos
| | about toolbar stats live show health store more stuff JOIN/LOGIN |
in Rule 26, Federal Rules of Civil Procedure @... levymd.com | civil war uniforms Resources | civil war uniforms, civil war ammunition insidedisease.com | Civil War Bullets, Probes, and Extractors - Civil War Medicine civilwarmedicalbooks.com |
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function. Civil Procedure is one of the first-year law school courses mandated by the American Bar Association.[1]
[edit] Differences between civil and criminal procedureCriminal and civil procedure are different. Although some systems, including the English, allow a private citizen to bring a criminal prosecution against another citizen, criminal actions are nearly always started by the state. Civil actions, on the other hand, are usually started by individuals. In Anglo-American law, the party bringing a criminal action (that is, in most cases, the state) is called the prosecution, but the party bringing a civil action is the plaintiff. In both kinds of action the other party is known as the defendant. A criminal case against a person called Ms. Sanchez would be described as “The People v. (=versus, or against) Sanchez,” "The State (or Commonwealth) v. Sanchez" or "[The name of the State] v. Sanchez" in the United States and “R. (Regina, that is, the Queen) v. Sanchez” in England. But a civil action between Ms. Sanchez and a Mr. Smith would be “Sanchez vs. Smith” if it was started by Sanchez, and “Smith vs. Sanchez” if it was started by Mr. Smith. Most countries make a rather clear distinction between civil and criminal procedure. For example, an English criminal court may force a defendant to pay a fine as punishment for his crime, and he may sometimes have to pay the legal costs of the prosecution. But the victim of the crime pursues his claim for compensation in a civil, not a criminal, action.[2] In France, however, a victim of a crime may be awarded damages by a criminal court judge. Evidence from a criminal trial is generally admissible as evidence in a civil action about the same matter. For example, the victim of a road accident does not directly benefit if the driver who injured him is found guilty of the crime of careless driving. He still has to prove his case in a civil action, unless the doctrine of collateral estoppel applies, as it does in most American jurisdictions.[2] In fact he may be able to prove his civil case even when the driver is found not guilty in the criminal trial, because the standard to determine guilt is higher than the standard to determine fault. However, if a driver is found by a civil jury not to have been negligent, a prosecutor may be estopped from charging him criminally. Once the plaintiff has shown that the defendant is liable, the main argument in a civil court is about the amount of money, or damages, which the defendant should pay to the plaintiff.[2] The standards of proof are higher in a criminal action than in a civil one since the loser risks not only financial penalties but also being sent to prison (or, in some countries, executed). In English law the prosecution must prove the guilt of a criminal “beyond reasonable doubt”; but the plaintiff in a civil action is required to prove his case “on the balance of probabilities”.[2] Thus, in a criminal case a crime cannot be proven if the person or persons judging it doubt the guilt of the suspect and have a reason (not just a feeling or intuition) for this doubt. But in a civil case, the court will weigh all the evidence and decide what is most probable. [edit] Civil court in BrazilIn Brazil the federal Civil Procedure Code (in Portuguese: Código de Processo Civil; shorthand: CPC) governs civil cases both in federal and state jurisdictions. [edit] Civil court in CanadaIn Canada the rules of civil procedure are administered by each jurisdiction (federal and each province) and thus each has its own set of rules. Most provinces base their civil procedure rules on the mixture of English and American rules adapted to the needs of the province. The Ontario Rules of Civil Procedure have been largely adopted by Manitoba, PEI, and North West Territories. In Ontario the stated general principle of the Rules of Civil Procedure is
Civil procedure is generally developed by a civil procedure committee consisting of judges of the local jurisdiction. This committee makes recommendations concerning procedural changes which must be ratified by the attorney general of that jurisdiction in order to move into effect. The courts may also exercise inherent jurisdiction to control their own processes, but inherent jurisdiction cannot be exercised so as to conflict with a statute or rule. As a result, if a process has been contemplated by the civil procedure a court does not have the authority to alter or dispense compliance with that process. The noted exception to the required compliance with the civil procedure is that the rules themselves often contain a rule which permits a court to
The onus is on the party seeking to dispense with compliance with a rule to demonstrate that it is in the interest of justice.[3] Alternative dispute resolution proceedings and administrative law proceedings both tend to have relatively simple rules of procedure, in comparison to the highly formalized procedures seen in the federal and state courts. [edit] Civil court in England and WalesThe civil courts of England and Wales adopted an overwhelmingly unified body of rules as a result of the Woolf Reforms on 26 April 1999. These are collectively known as the Civil Procedure Rules 1998 and in all but some very confined areas replaced the older Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules. [edit] Civil court in the United StatesEarly federal and state civil procedure was rather ad hoc and was based on traditional common law procedure but with much local variety. There were varying rules that governed different types of civil cases such as cases at law or in equity or in admiralty; these differences grew from the history of "law" and "equity" as separate court systems in English law. Even worse, discovery was generally unavailable in actions at law. In order to obtain discovery, a party to a legal action had to bring a collateral proceeding, a bill in equity in aid of discovery, just to obtain essential documents or testimony from the opposing party. The Conformity Act of 1872 directed federal courts to conform to the civil procedure of the states in which each federal court was located as much as possible, though federal courts were allowed to continue to develop the federal common law of evidence (most of which was replaced a century later by the Federal Rules of Evidence). However, state civil procedure law continued to diverge, particularly when some states but not others began to replace common law pleading with code pleading. The inevitable result was confusion and chaos in the federal courts, particularly as interstate commerce escalated with the Second Industrial Revolution and an increasing number of cases between citizens of different states were heard in federal courts under diversity jurisdiction. Therefore, the United States federal court system adopted standardized Federal Rules of Civil Procedure on September 16, 1938, which unified law and equity and replaced common law and code pleading with modern notice pleading. There are exceptions to the types of cases that the Federal Rules now control but they are few in number and somewhat esoteric (e.g., "prize proceedings in admiralty"). Most states have also adopted the Federal Rules to govern civil procedure in their state court systems, although significant modifications were necessary because the federal courts are courts of limited jurisdiction, while state courts have general jurisdiction over innumerable types of matters that are usually beyond the jurisdiction of federal courts (traffic, family, probate, and so on). California and New York are the odd exceptions in that almost all of their sui generis civil procedure systems are codified in statutory law (the Code of Civil Procedure and the Civil Practice Law and Rules, respectively), not in rules promulgated by the state supreme court or the state bar association. A few states have adopted the general principle that civil procedure should be established in court rules, not civil procedure statutes, but have refused to adopt the FRCP. For example, Rhode Island has its own Civil Court Rules of Procedure. [edit] References[edit] See also[edit] External links
[edit] See also |
| ↑ top of page ↑ | about thumbshots |
