Civil Procedure is a set of rules which govern how individuals use the Court system to enforce their rights, both against other private parties and against the government. All cases which are not criminal or quasi-criminal cases (e.g. traffic violations or ordinance violations) are governed by civil procedure.
American Civil Procedure is an adversary proceeding. Judges and juries simply review what the parties to the case and their lawyers feed them and enter their rulings based upon that evidence. There is no independent investigation of the facts.
A traditional U.S. respect for the jury system also means that any decision making, outside the most obvious cases, must be reserved until trial. No country in the world makes as wide a use of juries in civil cases as the United States does. Juries are not used in civil cases in Civil Law countries (which make up most of the world) and are no longer used in the United Kingdom outside of a very select variety of cases (mostly defamation cases and cases alleging wrongful convictions). Australia and Canada make wider use of civil jury trials than the United States, but still use then considerably less often. Civil Law countries tend to try civil cases in multiple installments that resemble depositions or motion hearings in the U.S.
While jury trials are rooted in a notion of democracy, the main reason for the continued vitality of the civil jury trial in the United States (as opposed to criminal jury trials where the concern is insulating cases from government influence) is the important role it plays in determing non-economic damages in personal injury, employment and civil rights cases, which is where civil juries are most common. The issue is fundamentally subjective, and jurors resolve this fundamentally subjective issue for parties in civil lawsuits. Few other countries have such subjective rules for awarding damages in personal injury cases.
U.S. trials are also far more formal than trials in Civil Law countries because judges felt that trials to a jury needed restrictive rules of evidence to discourage juries from considering emotionally prejudicial or unreliable evidence. Also, the order of presentation has typically been rigid in American law because juries are designed to serve as audiences of the lawyer's presentations, rather than active fact finders.
The U.S. system of civil procedure places great emphasis on getting it right the first time, because unlike the situation in Civil Law countries, erroneous findings of fact in a civil case are largely immune to review on appeal. This is one reason that discovery is so extensive compared to Civil Law countries in the U.S.
There are three main parts of a civil case. It commences with the "Pleadings" stage, is followed by a middle portion consisting of "Discovery", "Motion Practice" and "Case Management", and is concluded with a "Trial" if not resolved before that point, which may be reconsidered in post-trial motions. Appellate Procedure governs any further proceedings in a civil case. Some types of cases (e.g. evictions, foreclosures, habeas corpus cases, and administrative appeals) are often governed by special rules typical providing for expedited treatment. Each part is discussed below.
A civil case is commenced by filing a document called a "Complaint" or "Petition" with a court that has jurisdiction over the case. This is probably the most readable document in a civil case and sets forth briefly the basis for the lawsuit.
Jurisdiction comes in several flavors:
"Subject matter" jurisdiction governs whether the court can handle the type of case brought in general -- for example, large claims can't be brought in small claims court, patent cases can't be brought in state court, and cases against a private party typically can't be brought in a "court of claims". Subject matter jurisdiction also generally required that there be an actual dispute between the parties, rather than a merely hypothetical one (i.e. a "case or controversy") and that the person bringing the suit have some connection to the matter disputed (i.e. "standing").
"Personal jurisdiction" has two parts.
First, a court can have jurisdiction over a particular person only if that person has been "served with process" in accordance with the proper procedure. Typically this is done by hand delivering the Complaint or Petition and a document called a summons directly to the person named in the lawsuit. Under certain circumstances service by hand delivery to a person connected to a person named in a lawsuit (such as a secretary or spouse), service by mail, service by posting (e.g. in an eviction suit) and/or service by publication (typically only in suits limited to ownership rights in property where the person affected by the suit cannot be located) is permitted.
Second, a court can have jurisdiction over a particular person only if that person have some relationship with the territory over which the court presides. A court has this second kind of jurisdiction over anyone who resides there or has an office for the conduct of business there ("general personal jurisdiction") (for most purposes, the only form of personal jurisdiction from 1877 (the U.S. Supreme Court case of Pennoyer v. Neff) to 1945 (the U.S. Supreme Court case of International Shoe Co. v. Washington) and also over anyone who has "significant contacts" with the territorial area of the court ("long arm jurisdiction"). The long arm jurisdiction gives state courts jurisdiction over out of state people who, for example, commit a civil wrong in the state, enter into a contract in the state, or get someone pregnant in the state. Long arm jurisidction, combined with the class action, have made trial lawyers a significantly more relevant force in our legal system, because many legal rights were previously unenforcable in any convenient forum by a person who was harmed by out of state parties. The absence of effective long arm jurisdiction power was also an important factor historically behind giving federal courts authority over suits between parties from different states.
Sometimes more than one court has jurisdiction over a case, in which case "venue" rules determine which court is the preferred court to hear the case, and any interested party may request that the case be heard in that court. Unlike jurisdiction, venue does not remove the power of a court to hear a case, it simply gives a party the power to request, in a timely and proper fashion, a transfer of the case to a different court.
Responses and Defaults
After a complaint or petition is properly served and filed in a court with jurisdiction over the case, a large percentage of all collection and eviction cases, and a signficiant proportion of other cases, end in a "default judgment", in which the court simply award a win to the party bringing the case because no one responded.
When a party named in a lawsuit doesn't want to let a "default judgment" enter against him, the party must file a document stating a legal reason why judgment should not enter against that party, often called an "answer", and may also seek to add new parties to the lawsuit or bring "counterclaims" against the people who brought the suit, to which the new parties or persons defending the counterclaims file their own responses. Sometimes someone who should be named in a case, but isn't, hears about it and "intervenes" with the court to seek to be added.
Eventually, usually within a few months of the time the suit is initially brought, ever person sued has either defaulted or filed the appropriate documents with the court and the issues in the case have been formally defined.
Essentially anyone with paper, something to write with, and a modest filing fee can file a lawsuit. Prevailing, of course, is another matter.
Case Management, Motions, Discovery and Settlement.
Once the pleadings are in order, the middle stage of a lawsuit begins. This consists of case management, motions, discovery and settlement.
Case management is the process of setting deadlines and a trial date in a case, and also, often rules governing motions and discovery which are particular to the case (e.g. "each side will be allowed seven depositions").
Motions come in several kinds. Early on in a case a party to a lawsuit may bring a "motion to dismiss" alleging that the lawsuit would not prevail even if everything in the complaint were true, that the case is filed in the wrong court, or that there is some other technical defect. In class action lawsuits, motion practice determines if the group of people named as bringing the lawsuit really do share a common legal dilemna and have enough in common with each other to bring the lawsuit as a single group. There are also often motions regarding who must or must not be included in a case.
In the middle of a case motions often concern discovery (see below) and "motions for summary judgment" which seek to have a judge resolve a case, based on the undisputed facts that have come to light in the discovery process, on the basis of the law (which is decided by a judge rather than a jury which determines the facts of a case). Motions for summary judgment are particularly common in commercial cases where a paper trail and depositions often provide undisputed facts and the real disputes are over the legal meaning of those facts.
Near the end of a case, motions often concern what evidence can be admitted at trial and other trial related matters.
Courts of limited jurisdiction (which typically handle cases with only small dollar amounts in dispute) often have little or no motion practice.
Discovery is the process of getting information from the other side in a case. Some information must be provided automatically, some information must be provided in response to written requests, and some information is provided in depositions where a witness, lawyers for the parties, and a court reporter meet to take testimony under oath outside the presence of a judge. Most large cases involve voluminous exhanges of documents and numerous depositions. This part of the case typically accounts for 90% or more of the cost of litigation in a large civil case, and most of the costs of litigation in the bulk of civil cases brought in general jurisdiction courts (i.e. non-small claims cases). Prior to the adoption of the Federal Rules of Civil Procedure, most civil cases were "trials by surprise" with little or not discovery which were inexpensive to conduct but often hinged on surprise facts not revealed until trial and hidden information. Now, civil trials are closer to carefully scripted rehashings of what all the parties already know, but are far more expensive. This has been particularly problematic in mid-sized cases and cases where one or more parties does not have a lawyer.
Courts of limited jurisdiction often eliminate all or most discovery.
Only a small percentage of cases actually go to trial. In federal practice this is on the order of 2%-4%. The percentage is somewhat higher in most state courts, but not by much. Certainly, almost no state court system sees 10% or more of its civil cases go to trial.
A large percentage, especially in limited jurisdiction courts (collection cases and evictions mostly) are resolved with default judgments. Another meaningful percentage are resolved by motions prior to trial. But, most cases not resolved with default judgments are settled prior to trial, either by negotiations involving the parties and their lawyers, if any, or with the help of mediators or other "Alternative Dispute Resolution" professionals. Typically, the main factors that drive settlement are a desire to avoid any uncertainty about what a judge or jury will do at trial, a general consensus between the parties on many of the important facts in the case which provide some boundaries on what is likely to happen at trial (settlement is much more common when there is rough agreement on liability and there is a dispute regarding damages than the other way around), and a desire (especially from the less affluent party) to avoid the costs and delays of litigation.
Trial and Post-Trial Motions
While any party can typically demand a trial by jury in most kinds of civil cases, a large majority of cases involving personal injuries are tried before juries. Most civil cases not involving personal injuries are tried before judges.
At trial, each side presents evidence to the trier of fact subject to rules of evidence which are enforced by the judge at the request of a party ("I object."). The rules of evidence which apply in civil cases are somewhat less restrictive than those that apply in criminal cases, although they are generally similar.
In a jury trial, the judge then prepares jury instructions which tell the jury what laws apply to the case and lets them decide the facts. In a trial to a judge, the judge resolves all issues of law and fact and resolves the case.
For a brief period after trial, a party may bring motions disputing some aspect of the trial or ruling (generally denied unless it involves clerical error or a truly absurd jury result such as a logically inconsistent verdict), and the parties can appeal the result to a higher court on the grounds that mistakes of law were made at trial (findings of fact made at trial are much harder to appeal).
Courts of limited jurisdiction often have trials in a few months to a year. Courts handling more significant cases often have trials after six months to a couple of years.
Issues in Civil Procedure
One major issue in civil procedure today is whether it is so expensive that it unreasonable pressures parties to settle, rather than having the case resolved at trial.