Civil procedure: Wikis

Advertisements
  
  
  
  

Note: Many of our articles have direct quotes from sources you can cite, within the Wikipedia article! This article doesn't yet, but we're working on it! See more info or our list of citable articles.

Did you know ...


More interesting facts on Civil procedure

Include this on your site/blog:

Encyclopedia

From Wikipedia, the free encyclopedia

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]

Contents

Differences between civil and criminal procedure

Criminal and civil procedure are different. Although some systems, including the English, allow private persons to bring a criminal prosecution against another person, prosecutions are nearly always started by the state, in order to punish the defendant. Civil actions, on the other hand, are started by private individuals, companies or organisations, for their own benefit. The cases are usually in different courts, and juries are not so often used in civil cases.

In Anglo-American law, the party bringing a criminal charge (that is, in most cases, the state) is called the prosecution, but the party bringing most forms of civil action is the plaintiff or claimant. 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", "against" or "and") 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 v. Smith” if it was started by Sanchez, and “Smith v. Sanchez” if it was started by Mr. Smith.

Most countries make a clear distinction between civil and criminal procedure. For example, a criminal court may force a convicted defendant to pay a fine as punishment for his crime, and the legal costs of both the prosecution and defence. But the victim of the crime generally pursues his claim for compensation in a civil, not a criminal, action.[2] In France and England, however, a victim of a crime may incidentally be awarded compensation 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.

If the plaintiff has shown that the defendant is liable, the main remedy in a civil court is the amount of money, or damages, which the defendant should pay to the plaintiff.[2] Alternative civil remedies include restitution or transfer of property, or an injunction to restrain or order certain actions.

The standards of proof are higher in a criminal case than in a civil one, since the state does not wish to risk punishing an innocent person. 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.

Civil court in Brazil

In Brazil the federal Civil Procedure Code (in Portuguese: Código de Processo Civil; shorthand: CPC) governs civil cases both in federal and state jurisdictions.

Civil court in Canada

In 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

to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

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

only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.

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.

Civil court in England and Wales

The 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.

Civil court in the United States

Early 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.

See also

References

  1. ^ Legal Standarts - PDF, page 302
  2. ^ a b c d Richard Powell (1993). Law today. Harlow: Longman. pp. 34. ISBN 0582056357, 9780582056350. OCLC 30075861.  
  3. ^ Supreme Court of Canada, Gustovson Drilling, 1976

External links


See also

Advertisements

Advertisements






Got something to say? Make a comment.
Your name
Your email address
Message