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To be effective, law must go beyond the determination of the rights and obligations of individuals and collective bodies to an indication of say how these rights and obligations can be enforced. It Moreover, it must do this , moreover, in a systematic and formal way. Otherwise, the numerous disputes that arise in a complex society cannot be handled efficiently, fairly, without favouritism, and, equally important for the maintenance of social peace, without the appearance of favouritism. This systematic and formal way is procedural law. Procedural law, then, because the failure to do so would render the legal system inefficient, unfair, and biased and, as a result, possibly upset the social peace. Embodying this systematization and formalization, procedural law constitutes the sum total of legal rules designed to ensure the enforcement of rights by means of the courts. It thus contrasts with substantive law, the sum total of the rules determining the essence of the rights and obligations.
Because procedural law is only a means for enforcing substantive rules, there are different kinds of procedural law, corresponding to the various kinds of substantive law. Criminal law , for example, is the branch of substantive law dealing with punishment for offenses against the public and has as its corollary criminal procedure, which indicates how the sanctions of criminal law must be applied. Substantive private law, which deals with the relations between private (that isi.e., nongovernmental) persons, whether individuals or corporate bodies, has as its corollary the rules of civil procedure. Because the object of judicial proceedings is to arrive at the truth by using the best available evidence, there must be procedural laws of evidence to govern the presentation of witnesses, documentation, and physical proof. The law of conflict of laws, in both its civil and criminal applications, provides methods for resolving problems that arise from the diversity of legal systems in the world.
This article deals with This article addresses procedural laws as they apply to noncriminal lawsuits in the Anglo-American common law and the continental European civil law. civil law systems used in continental European countries, Japan, and Latin America and in many legal systems in the developing world. It also contains a much briefer description of the procedural characteristics of Islamic jurisprudence. Substantive laws are covered in such articles as criminal law; , business law; , and constitutional law. For treatment of administrative procedural law, see public administration.
The rules of every procedural system reflect choices between worthy goals. Different systems, for example, may primarily seek truth, or fairness between the parties, or a speedy resolution, or a consistent application of legal principles. Sometimes these goals will be compatible with each other, but sometimes they will clash. When this happens, the rules of the system reveal the priorities it has established among these values.
The world's two most widely used procedural systems have developed different ways of implementing such choices. One system centralizes responsibility for developing and deciding disputes and maintaining some consistency in legal rules, giving primary responsibility to state officials—i.e., the judiciary. The other path decentralizes power, giving the parties and their representatives primary responsibility for presenting factual evidence and legal arguments to a judge and sometimes also a jury, whose role is generally restricted to deciding which party has presented the better argument. The first system, usually referred to as civil-law procedure, is often associated with Roman law. The second system, usually called common-law procedure, is often found in countries that derive their legal system from that of early modern England. Both systems have characteristic strengths and weaknesses. Civil-law procedure, emphasizing the responsibility of a professional judiciary, may reduce the likelihood that the outcome of lawsuits will turn on the wealth of the parties and increase the likelihood that outcomes and rules will remain consistent; the same characteristics, however, may leave the parties feeling that they have not been fairly heard and that the facts have not been adequately probed. Common-law procedure, emphasizing party control of litigation, may leave the parties more content that their particular dispute, in all its factual complexity, has been heard, is thriftier with governmental funds, and depends less on a specially trained judiciary. It may, however, lead the parties to spend large sums on litigation expenses and may result in legal rulings that are somewhat untidy and inconsistent.
Within these two broad family groupings, procedural systems must make other choices. Who will bear the cost of litigation? What depth of factual investigation characterizes ordinary litigation? How flexibly may claims and defenses be revised and how easily may additional parties be added? Once a lawsuit is concluded, how broadly does it preclude subsequent litigation between the parties? Each of these questions has specific, technical answers in any given legal system, answers that have changed over time and that collectively define the system's contribution to the society in which it is embedded.
One seeking to compare the civil process of different legal cultures must also understand that procedural rules interact with choices about the shape of government, access to lawyers, the level of investment in the legal system, and the competence, honesty, and diligence of public officials. A procedural system can have fine rules but will not work well if judges are corrupt or officials refuse to enforce unpopular judgments. Conversely, diligent and honest officials and lawyers can compensate for suboptimal procedural regimes.
Roman law went through three phases, the last two of which exercised long-lasting influences. The first phase required strict compliance with highly formal rules of pleading. During the second, classical period, beginning in the 1st century BC, a more flexible formulary procedure developed. Lawsuits were divided into two parts, the first being devoted to defining the issues, the second to deciding the case. The suit began with the parties presenting their claims and defenses orally to a judicial official called a praetor, whose main function was to hear the allegations of the parties and then to frame a formula or instruction applicable to the issue presented by the parties. The praetor did not decide the merits of the case. Instead, with the consent of the parties, he selected from a list of approved individuals a private individual (judex) , whose duty it was to hear witnesses, examine the proof, and render a decision in accordance with the applicable law contained in the formula. There was no appeal. The procedure facilitated growth and change in the law: by adapting existing formulas, or modifying them, the praetors were, in effect, able to change substantive rules of law.
This two-phase process allowed expert development of law while ensuring that the parties themselves would choose the person who rendered a final, unappealable decision in their case. Civil procedure in classical ancient Rome thus distinctively combined professional and lay participation, state authority, and voluntary choice of arbiters by the parties. Its ideals and some of its mechanisms had a marked influence on later legal development in Europe (though to a lesser extent in England) and, through borrowing, on some modern Asian legal systems.
The formulary system (so called from the formulas issued by the praetors), with its separation of fact-finding and determination of the law was , operated in Rome but not followed in the many provinces conquered by the Romans. ThereInstead, provincial administrative officials rendered justice under general administrative powers. In the late imperial period, the provincial procedure used in the provinces was also introduced in displaced classical procedure in Rome itself. The In this third phase of Roman law, the creative role of the praetor came to an end, the formulas were abolished, and the division of a lawsuit lawsuits were no longer divided into two phases was also terminated. Lawsuits were now , instead being initiated by a written pleading. Appeals from lower to higher first-tier to second-tier judges became possible, and but the procedure lent itself to delay. As a result, parties often submitted their disputes to arbitration or to religious leaders for settlement. Consequently, the leaders of various religious communities, including in particular those of the Christian Church, came to exercise judicial functions that in the very late Roman Empire received a degree of state recognition.
Medieval European lawThe Germanic tribes that conquered the Roman Empire in the 5th century carried their own procedure with them into the conquered territories. That procedure was quite formalistic: in The Roman legal tradition was passed on to later generations through the Corpus Juris Civilis, a compilation of centuries of Roman jurisprudence. Collected in the first part of the 6th century AD by order of the eastern emperor Justinian I, this text became a main source for ecclesiastical and modern civil law. As jurists compiled this monument to legal learning and organization, the Roman empire in the west lay in ruins, having been overrun by German tribes. The western empire had been unable to provide its citizens with security from attack, much less with the conditions of civil legal order. The immediate future of western European law, therefore, lay with the tribal legal systems.
In the eastern empire a new religion, a new civilization, and a new legal system arose: Islam and Islamic law. Based on the life and teachings of Muhammad, Islamic law held sway for almost 1,000 years in an empire whose size, civilization, and might were comparable to those of Rome in the west and China in the east. Islamic jurists developed a complex and learned system of substantive law. Procedurally, its most notable characteristics were the absence of an appellate system and the maintenance of a robust tradition of legal learning independent of the state. Although scholars have disagreed over the extent to which actual rulings of Islamic judges and the content of Islamic law were subservient to state interests, the tradition of learned, independent jurists survives to the present day. The absence of appellate review and the independence of the juristic schools—each tracing their interpretations to the Prophet Muhammad—created great and learned debates but also made coordination and predictability difficult. Different schools and different jurists sometimes disagreed, and in the absence of authoritative rulings litigants and governments faced a difficult choice. They could tolerate inconsistent outcomes until, over time, jurists came to agreement, or they could, somewhat arbitrarily, declare that one side had the better argument. Today, most Islamic nations preserve Islamic substantive law but also observe some system of civil-law procedure.
Unlike classical and imperial Roman law, which was the product of a largely secular society, the Islamic legal tradition has remained firmly rooted in religious texts and practices. This feature limited its potential for spreading to non-Islamic societies. One can, however, identify features that it shares with other legal systems. Like today's civil-law systems, the Islamic tradition depends on an elite cadre of highly educated jurists, who probe and shape the parties' cases and who assume responsibility for rendering a just decision in accordance with an elaborate body of authoritative texts. Like classical Roman law, the Islamic tradition permits no appeal; the original decision is also the final decision. One sees a much milder version of the same principle in today's common-law procedure, which, though it permits appeals, limits their grounds far more than civil-law systems.
In contrast to the procedure of the late Roman Empire, which depended heavily on state officials, the procedure of the conquering Germanic tribes embodied the opposite principle—party control and broad popular participation. Because these nomadic cultures relied on lay participation, their legal procedures had to be relatively brief and capable of yielding simple answers even in complex disputes. In court, which often was the assembly of all the freeborn men of the district, the parties had to formulate their allegations in precise, traditional language; the use of improper words could mean the loss of the case. At this point If the parties surmounted this pleading stage, the court determined what method of proof should be used: ordeal, judicial combat between the parties or their champions, or wager of law (whereby each side had to attempt to obtain more persons who were willing to swear on their oaths as to the uprightness of the party they were supporting). Roman law procedure, however, never entirely disappeared from the territories conquered by the Germanic tribes. In addition, a Such a system might resolve individual disputes that threatened tribal peace, but it could not develop into a systematic legal tradition. Nor was it well adapted to resolving the frequent questions of land ownership in the settled, if often violent, feudal states into which post-Roman Europe evolved.
Alongside Germanic forms of popular justice, Roman legal procedure survived in various traditions. A modified form of late Roman procedure was used in use in the ecclesiastical courts that applied the still-developing canon law. This late Roman and -canonical procedure appears to have been preferable to the Germanic procedure and gradually supplanted it gradually supplanted the Germanic tribal traditions in Italy and France, and somewhat later in Germany, though not all elements of the Germanic procedure did not disappear. In Scandinavia, on the other hand, indigenous procedure disappeared. By contrast, in Scandinavia indigenous procedure adapted itself and was able to resist displacement by foreign law.
The Roman-canonical procedure, with With its heavy reliance on written, rather than oral, presentations, necessitated the Roman-canonical procedure contrasted markedly with that of Germanic tribal law. The Roman tradition required representation by learned counsel . The whole procedure was divided into rigidly formalized stages. and judges, who were quite scarce in the early medieval period. Precise rules governed the presentation of evidence; thus for example, the concordant testimony of two male witnesses usually amounted to "full proof," and one witness was ordinarily insufficient to prove any matter, unless he was a high ecclesiastic. A court order was needed before testimonial evidence could be used; witnesses were ordinarily examined not before the full court but by a judge, with Witnesses could ordinarily testify to the court only by submitting a written summary of their testimony prepared by a court clerk or notary committing the witnesses' testimony to writing for later submission to the court. This complex and slow procedure might have worked reasonably well for elaborate disputes involving land ownership, but it was ill-suited to the day-to-day needs of commerce; as . As a result, special courts operated by and for businessmen sprang up in important mercantile centres (maritime courts, commercial courts) to deal with matters of maritime and inland commerce.
As the Middle Ages endedcame to a close, there was an increasing tendency to favour written over oral evidence. At the same timeSimultaneously, there was a tendency to "nationalize" create "nationalized" versions of the general Roman-canonical procedure prevalent in much of Europe and to create national procedural laws. In 1667 in France this led to the enactment by Louis XIV of the Ordonnance Civile, also known as Code Louis, a comprehensive code regulating civil procedure in all of France in a uniform manner. The Code Louis continued, with some improvements, many of the basic principles of procedure that had prevailed since the late Middle Ages.
Originally, procedure in English local and feudal courts resembled quite closely that of other countries with a Germanic legal tradition. But unlike Unlike the continental European countries on the continent of Europe, however, England never romanized its indigenous procedure once the latter had become inadequate but instead developed a procedure of its own capable of substantial growth and adjustment. That England was able England's ability to do this seems to have been due to two related was likely a result of two factors, both related to the result of the strong monarchy monarchical system that followed the Norman invasionConquest (1066): the growth creation of the jury system and the establishment of a centralized royal court system. The former offered jury allowed the flexibility of lay participation while offering a substitute for the antiquated methods of proof of the traditional Germanic law—ordeal, trial by battle, and wager of law—and the latter law. The central courts led to the creation of a definite legal tradition, the common law, and to the administration of justice through permanent professional judges , and their attendant clerks, instead of the popular assemblies or groups of wise men who rendered justice elsewhere.
Royal In the years immediately after the Norman invasion, royal courts could be used only if permitted by a special royal writing, or writ, issued in the name of the king. Such writs were at first issued when there was a complaint that local or feudal courts were not rendering justice. Later, they were issued in cases involving land; such a writ might writ might, for example, direct the defendant to return the land or explain why he refused to do so or, later on, direct the sheriff to bring the defendant before the court so that he might could be required to answer for his conduct. Eventually the writs became standardized. Through ingenious fictions (assumptions, for judicial purposes, of facts that do not exist), substantially all litigation not reserved to the ecclesiastical or other specialized courts could be brought before the royal courts, a situation preferred by suitors, since the royal Writs were at first issued only when there was a complaint that local or feudal courts were not rendering justice. Later, they were issued in cases involving land and gradually standardized and extended to cover almost all aspects of civil justice. Suitors sought royal justice because it offered good enforcement—the sheriff, a royal official, was responsible for carrying out judicial orders—and because they liked its procedure—royal courts abandoned much of the awkward Germanic law of proof in favour of trial by jury sooner than did local courts.
As the system of royal courts developed, the counsel came to play a central role. The parties, or rather through their counsel, formulated the issues to be settled through their "pleadings" pleadings before the court in London; after that the issues would be tried . After the pleading stage, counsel would try the issues before a jury in the county where the facts arose. The mechanics of pleading, originally oral and simple, gradually became quite complex. Originally, Germanic pleading practices, which involved oral formulation of issues in rather precise words, prevailed. Eventually, the clerks of the court wrote a summary of these oral pleadings and later recorded the entire substance. highly complex. The plaintiff had to plead facts that came within the writ used to start the action; the defendant generally could either generally deny the facts asserted by the plaintiff or assert specific defenses. (For modern pleadings procedurepleading practices, see below Preliminaries to proceedings: Pleadings.) Common law permitted appeals from most judicial rulings but required the parties to wait until the case was over before seeking review.
The complexities of the common-law procedure led some parties to request relief directly from the king, who in medieval theory was considered as then the ultimate fountainhead of justice. These requests were transferred The king regularly transferred such requests to the royal chancery—that is, the office of the lord chancellor—which, in this way, developed into another court ; it called the chancery. The chancery court was supposed to deal "equitably" equitably with cases in which the strict rules of the common law failed. In the course of time this function of the chancery developed into a body of well-defined rules known as "equity." Until the 16th century the chancellors were generally ecclesiastics; hence, procedure in chancery to obtain equity was to some extent influenced by canonical procedures. In particular, there was no jury trial, no writ circumscribing a precise cause of action, and so forth.no in-court testimony of witnesses. Instead, litigants could compel (by court orders called subpoenas) the out-of-court statements of witnesses, whose sworn testimony would be recorded as the basis for the chancellor's decision. Equity also differed from common law in allowing immediate appeal of every judicial ruling, a practice that made suits in equity notoriously slow. The procedure of the common-law courts and the existence of a separate procedure for equity matters were both taken over adopted in the United States.
In the 19th century there developed were substantial reforms of legal procedure in both England and the United States movements to simplify procedural complexities. These involved several related approaches: (1) a reform in court organization, doing away with separate courts of equity and , to the extent they existed, with coordinated common-law courts of general jurisdiction and establishing a more rational system of appeals courts; , (2) a reform of pleading, largely abandoning largely the need to plead a specific cause of action based on writs, and giving judges (3) the grant to judges of limited power to promulgate rules of procedure, and (4) the development of the law of evidence. In the United States the first three of these principles were first initially embodied in the widely followed New York Code of Civil Procedure of 1848, which many other states subsequently adopted. In the 20th century , however, the notion gained ground that legislation was too slow and too inexpert a means for the adoption of new procedural rules. This belief led to the Rules Enabling Act of 1934, which authorized the U.S. Supreme Court of the United States to adopt (subject to congressional veto) Rules of Civil Procedure for the federal district courts, though some matters, such as subject-matter jurisdiction, remained governed by acts of Congress. The federal Rules of Civil Procedure were later followed by Rules of Appellate Procedure and Rules of Evidence. There were similar developments in many of the states and also in England and Wales.
The reforms were not entirely successful; early court decisions interpreted the revised pleading rules in a restrictive fashion, and the merger of common-law and equity courts did not result in a complete merger of procedures. U.S. federal and state constitutions, for example, guaranteed a jury trial in all cases at common law but not in equity.
Civil-law codificationsAt present most U.S. states, even those that do not directly adopt federal rules, have procedural regimes that closely resemble that of the federal Rules of Civil Procedure.
Many of these simplifications made it easier for a case to reach trial. Once at trial, however, the case encountered the law of evidence. While 19th-century legislatures were rewriting procedural rules, the courts were creating an elaborate and often very technical body of doctrine concerning who could testify about what in a trial. This growing body of law enabled courts to exercise greater control over trial outcomes. An error in the admission of evidence was enough for an appellate court to reverse a verdict.
In some respects the two trends in 19th-century procedure counteracted one another: simplified pleading and court reform made it easier to get to trial on the merits; evidentiary doctrines created the opportunity for numerous errors at trial. By the end of the century a frequently voiced criticism was that appellate courts granted too many new trials as a result of evidentiary errors. Responding to this complaint, 20th-century reforms in all common-law countries preserved the law of evidence but no longer viewed small errors as sufficient for reversal of a judgment.
Paralleling the common-law changes described above, civil-law systems underwent several periods of reform in the 19th century, rationalizing procedural rules while maintaining the principle of judicial guidance of litigation.
Dissatisfaction with the system of judicial administration was a major cause of the French Revolution of 1789. One Thus, one of the earliest actions taken by the newly constituted National Assembly was the creation of a new court system (1790). But no reform of a lasting nature was undertaken in the field of civil procedure. The introduction of a jury system was debated , but it was adopted for criminal cases only.
Napoleon attempted to restore normality and unity to France after the Revolution through the creation of codes encompassing an entire field of law and containing the best of both the old pre-Revolutionary and the Revolutionary law. His The Napoleonic Code of Civil Procedure of 1806 , however, retained some procedures created during the Revolution but relied heavily on the 1667 code but continued certain procedures created during the RevolutionCode Louis.
During the 19th century, codifications of procedural law were enacted in other civil-law countries (, including Italy in 1865 and Germany in 1877). They usually retained large elements of the Roman-canonical or French procedure and were often cumbersome and slow. Austria departed from the Roman-canonical model in 1895 with the adoption of a new broke new ground in its Code of Civil Procedure . The new code of 1895, which adopted comprehensively the principle of oral presentation: only matters presented orally in open court were important for a decision of the case; writings could have only a preparatory role; witnesses were no longer were heard before a delegated judge who prepared a written record but were heard by the court or judge that who actually decided the case; finally, the parties were obligated to present their cases fully and truthfully, ; and the judge was directed to make certain that all relevant facts were stated. These notions were widely followed by served as a model for many other countries when they amended their codes of civil procedure.
Changes The Austrian model inspired changes made in French civil procedure beginning in 1958 were to some extent inspired by the Austrian model. Originally adopted in a series of individual decrees, they were consolidated in the new Code of Civil Procedure of 1975. Following Similarly, following earlier amendments to the 1877 German code that had strengthened the role of the judge, a statute adopted in 1976 in West Germany, called the simplification amendment, which was designed to expedite proceedings further. A somewhat contrary trend occurred in Italy, where later amendments to the more progressive 1942 Code of Civil Procedure to some extent reemphasized written presentations. A step contrary to some modern European thinking was also taken by the Belgian Judicial Code of 1967 (effective 1969). It reduced the role of the judge and correspondingly increased that of the parties and their counsel. Even more atypical were developments in Japan. In 1890 that country adopted a Code of Civil Procedure, very largely modeled was adopted in 1976 in West Germany and extended to all of Germany following the country's reunification in 1990.
The Japanese Civil Code of the 1890s was modeled largely on the German Code of 1877. In 1926 the code was amended in order to expedite procedures. Austrian ideas about the role of the judge were heavily relied on. But after the defeat of Japan at the end of World War II, an attempt was made to introduce some of the features of the American civil trial, with its heavy reliance on the presentation of facts by the parties' attorneys and the correspondingly less significant role of the judge. For a variety of reasons, the attempt was not entirely successful. Present Japanese law blends a procedure ; it was revised in 1926 to integrate Austrian ideas on the rule of the judge and to expedite procedures. Present Japanese law blends procedure rules largely based on the German model and Austrian models with some features of Anglo-American origin.
The U.S. Supreme Court holds that all procedural rules, whether found in statutes, rules of court, or case law, must be consistent with the mandates of the Constitution—in particular with the due process clauses of the Fifth and Fourteenth amendments. Thus, a defendant from one state or a foreign country cannot be required to defend a suit in another state unless the defendant has had enough contacts with that state not to offend "traditional notions of fairness and substantial justice." Likewise, "due process" implies that a party may not be deprived of substantial rights without having had an opportunity to present his side of the case. As a result of the adoption in many other countries of written constitutions with legally binding fundamental rights—and of the creation, after World War II, of special constitutional courts—constitutional rules granting a right to be heard, and, more generally, access to justice (often including access to legal aid) were created. These developments were reinforced by certain international agreements, in particular Article 6 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.
, adopted during the American occupation of Japan following World War II.
It is sometimes said that the As suggested above, one can contrast civil- and common-law systems by asking who has the power and initiative to guide and shape litigation. In Anglo-American common-law procedure is adversarial, while the continental European civil-law procedure is inquisitorial. This means that, in the common law, a lawsuit is essentially the concern of the adversaries, that is, the parties and their lawyers . It is the lawyers who present the evidence, and, unless a procedural problem arises, the judge simply listens to the presentation. By contrast, in the civil law there is a greater emphasis carry responsibility for gathering and presenting evidence and moving a case forward, and the judge's role is largely limited to deciding which of the parties has made the more convincing presentation. In the civil-law procedure typical of Europe and many Asian countries, greater emphasis is placed on the judge as a guarantor of a just outcome of the case , regardless of the lawyers' abilities. To this end he often functions , the judge may function as an inquisitorinvestigator, questioning the witnesses and parties as to the factual matters of the case. In some countries (e.g., such as Germany and Japan), the judge is required to guide the proceedings—for instance, by suggesting to the parties that they direct their attention to a particular point of fact or law. These differences in procedure create problems when, for a lawsuit pending in a country of one system, it is necessary to obtain evidence located in a country of the other system. In such cases, "judicial assistance" must be given to the courts in one country by those in the other
The contrast between these two systems extends to many other features. The American common-law system preserves substantial lay participation in the form of the civil jury (see below). Trial courts in common-law systems typically enjoy more power and greater freedom from appellate control than is the case in civil-law systems, in which appellate courts exercise broad supervisorial powers. Civil law judges constitute a separately trained professional elite, whose entire careers involve judicial service. Common-law judges, by contrast, are appointed in mid-career from among the practicing bar, bringing to the bench less professional training but broader practical experience.
The differences between various aspects of Probably the single most dramatic difference between civil- and common-law procedure have their origin in several factors, but the most important is the institution of the civil jury trial. A lay jury will be able to determine factual issues only if they , which is now essentially confined to the United States. Providing a trial by jury, however, creates other procedural requirements and pressures. For example, a lay jury can decide the question before it only if all factual matters are presented in a focused manner; hence the need, in common-law countries, for initial pleadings that serve straightforward manner. Common-law systems thus need to establish beforehand the factual matters in dispute. This is less necessary in In civil-law procedure, where this is less important, as the case is handled over a series of hearings by professional judges. Furthermore, because a jury of 12 laypersons cannot be kept together for an indefinite period of time, proceedings a jury trial must be conducted in a concentrated fashion. This gives the Anglo-American trial its peculiar and occasionally dramatic character. Where the determination of factual issues is entrusted to a professional judge (who, presumably, will be available for a considerable time), the process can be extended over several shorter hearings. Because a disbanded jury cannot easily be reassembled, the evidence presented by parties must be available at the beginning of the trial. Consequently, there must be common-law systems use procedures (called "discovery") that enable the parties to obtain before trial information they will need at the trial (see below Discovery procedures). Such procedures are much less important in civil-law procedure, where evidence that has come to light during the proceedings can be submitted at a subsequent hearing. Also, when
When factual matters are to be decided by a body of laypersons, the law must ensure that the jury will not be misled by evidence that is plausible or emotionally compelling on the surface but may be misleading. There is less need to guard against that danger whenever professional judges make factual determinations are made by professional judges.. Some features of the common-law doctrines of evidence can thus be traced to concerns that the jury not hear misleading forms of evidence.
Finally, because the jury decides questions of fact while the judge decides only questions of law, in common-law procedure a clear distinction must be drawn from the beginning between factual and legal issues. In Conversely, in civil-law procedure, on the other hand, where the judges decide both questions of fact and questions of law, there is normally no need to make a sharp distinction between these the two issues until a case reaches the highest level of civil courts, where only questions of law are open for review.
In spite of Despite the distinctions between civil and common law , some just described, there arguably have been recent trends toward a convergence of procedure exist. In private-law matters, courts in civil-law countries do not initiate proceedings on their own motion; rather, they decide only claims brought forward by the parties and normally only on the basis of evidence proposed by them. Indeed, in practice they give the parties much of the responsibility for suggesting lines of proof. Nor do judges in common-law countries always play merely the role of an impartial arbiter. In some cases, such as those involving the welfare of children, they often take a more active role in seeking out the facts.
Because a series of separate hearings makes make a proceeding unduly long, there are procedural reforms in some civil-law countries that favour (but do not mandate) a single, well-prepared, main hearing at which the decision is reached. On the other handBy contrast, in England, where the civil jury trial originated, the jury has fallen into almost complete disuse in civil cases, except in suits of defamation. In the United States, although trial by jury is a constitutional right, but steps have been taken toward more judicial control over proceedings. Thus, Rule 11 of the Federal Rules of Civil Procedure authorizes judges to penalize frivolous or harassing procedural tactics by lawyers; there is also a trend toward greater judicial supervision of discovery proceedings.
jury trials occur in fewer than 5 percent of filed civil actions. Many civil actions in the United States consist of a series of pretrial motions, often involving discovery, at the end of which the case is terminated by settlement or by pretrial judgment. In such cases—the great majority—the process in many respects resembles the civil law system: a series of staged judicial rulings rather than a compressed trial of the entire case.
In many legal systems substantive law, set forth in constitutions or similar documents, constrains procedural rules. Such constraints require procedural provisions to meet some overriding tenet either of fairness or of governmental supremacy. These rules may assume special importance in federal systems such as that of the United States and in quasi-federal systems such as that of the European Union.
The U.S. Supreme Court holds that all procedural rules, whether found in statutes, rules of court, or case law, must be consistent with the mandates of the U.S. Constitution—in particular with the due process clauses of the Fifth and Fourteenth amendments. In accordance with this principle, a person cannot be required to defend a suit originating in a state other than the one in which he resides unless he has had enough contact with that state not to offend "traditional notions of fairness and substantial justice." "Due process" also implies that a party may not be deprived of substantial rights without having had an opportunity to present his side of the case. Analogous provisions in the European Union guarantee individuals access to court and to judicial review of certain governmental actions. As a result of the adoption in many other countries of written constitutions with legally binding fundamental rights—and of the creation, after World War II, of special constitutional courts—constitutional rules granting a right to be heard and access to justice (often including access to legal aid) were created. These developments were reinforced by certain international agreements, in particular Article 6 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.
The words jurisdiction and competence refer generally to the power of an official body (legislative, judicial, or administrative) to deal with handle a specific matter. This section is concerned with judicial jurisdiction, "Judicial jurisdiction" refers to the power of a court to act. That power may depend on the relationship of the court to the subject matter of the action; in such an instance one speaks generally of subject-matter jurisdiction. Thus, a particular court may have the power to decide a dispute about contract but not one about copyright. The jurisdiction of a court also may also depend on the relationship between the court and the defendant in the action. As to that relationship, important conceptual differences exist between the countries of the common-law orbitThus, a court in France may lack power to decide a dispute between two Japanese businesses that have no connection with France. Important conceptual differences over this question exist between common-law countries, which usually refer to this problem as the question of "jurisdiction over the defendant" and countries within the defendant," and civil-law traditioncountries, which are likely to subdivide the problem into questions of "international jurisdiction" (i.e., which country may take the case) and questions of "territorial jurisdiction" (i.e., courts in which part of the country may take the case). As noted above, in In the United States , the due process clause of the Constitution imposes limits on the states' power to confer jurisdiction on their courts. It has been suggested that the word jurisdiction should be used only when discussing the power of the courts in a state generally to act in a given situation without violating the due process clause, whereas the word competence should be used to refer to the power of a particular court in a state to act pursuant to the laws of that state, but frequently the terms jurisdiction and competence are used interchangeably. (For a more detailed discussion, especially in relation to matters containing foreign elements, see laws, conflict of.)For reasons having to do with the historical tradition of the common-law courts—especially with the practice of the royal courts in London to send out judges to conduct trials throughout the country with the help of locally selected juries—in common-law countries the various higher courts existing in a given state are not ordinarily viewed as completely separate tribunals but essentially as parts of one overall court. Hence the question of "venue," which is usually not so problematical as lack of jurisdiction. ; consequently, a substantial amount of preliminary skirmishing may occur over the question of whether the plaintiff has brought suit in a state that has jurisdiction over a given defendant.
Venue refers to the territorial location in which a litigation should be conducted. The most common venue rule is that the action may be initiated where either the plaintiff or the defendant resides, where the cause of action arose, or, if real property is involved, where the real property is situated. Even when all formal legal requirements of jurisdiction and venue are fulfilled, American courts in the United States are sometimes authorized to dismiss an action or to transfer it to another court on the ground that the choice of court will create serious inconvenience for the parties or the court itself.
PartiesIn spite of differences in terminology, rules prevailing in various legal systems concerning the parties to a case show some basic similarities. It is quite generally recognized that in .
Every civil lawsuit involves at least two parties—a plaintiff making a claim and a defendant resisting it. Beyond this basic requirement, legal systems differ slightly in their approach to the question of whether other parties may or must be joined.
In order to participate in a lawsuit as a plaintiff or as a defendant, a party must have the capacity to sue and must , in addition, be a "proper" party (that isi.e., have standing before the court). All persons recognized as such by law, including corporations Adult individuals have legal capacity to sue or be sued unless they are mentally incapacitated. Corporations and even groups of individuals without formal corporate status , may, at least in the abstract, assert their generally may assert rights in court and are liable to suit by others. In practice, however, the The law obliges certain persons to act through another person. These persons, such as minors and mental incompetents, are usually said to lack procedural capacity, or to have it only to a limited extent, and those determined to be mentally incompetent, usually must act through parents or guardians. Corporations can frequently sue in their own name, though some countries (such as Sweden) require that actions involving a corporate entity be brought by or against the its board of directors or a similar body.
All legal systems limit in some respects the number of individuals who may engage in lawsuits; generallyimpose a requirement that a plaintiff have an interest for which he seeks protection in the lawsuit. Generally, only persons who have an actual interest in suffered an injury that can be remedied by the outcome of the lawsuit may sue or be suedsue—a doctrine sometimes called "standing" to sue. Furthermore, only a person who owns (or claims to own) the right or obligation under suit can be a party to a suit involving that right. In the United States this rule is frequently called the real party in interest rule, and similar rules are found elsewhere—for example, in exist in other countries (e.g., Italy and France). Frequently the The real party in interest ordinarily will be the person who will ultimately benefit from any recovery obtained, but this is not true in all cases. In the United States, for instance, the trustee of a trust is deemed the real party in interest in connection with suits involving the trust, though any recovery obtained by him will ultimately benefit the beneficiaries of the trust. Because of the problems inherent in the real parties in interest rule, some modern codifications have omitted any reference to it.In connection with matters of public law, the ability to sue is sometimes restricted less narrowly than in pure private-law actions. In France, for instance, citizens are able to For example, in France and in some U.S. states, citizens can bring actions in court to attack municipal expenditures (though not expenditures of the national government).
Ordinarily, only parties to an action are bound by its outcome. But when a very large group may be affected by a particular controversy, it is frequently impractical for all members of the group to join in the litigation. For this reason, the law in the United States sometimes authorizes so-called class actions, in which a limited number of persons sue to vindicate the rights of a much larger class; in the end all members are bound by the outcome of the suit. Class actions are frequently, but by no means exclusively, used in actions involving shareholders of a corporation. Countries with a civil-law tradition generally do not authorize class actions, though in some limited situations proceedings brought by one person may affect the rights of other persons not party to the suit. Sometimes associations (for example, organized consumers' groups) are authorized to sue.
Although a person is ordinarily free to decide for himself whether or not certain governmental expenditures.
A person ordinarily decides for himself whether he wants to attempt to enforce his rights by legal proceedings. Under some circumstances, however, his refusal to do so may cause harm to others. For To address this reasonsituation, the laws of many countries authorize creditors, for instanceexample, to prosecute actions of their debtors if the debtors fail to do so.
Legal controversies are not necessarily limited to two persons, one persons—one plaintiff and one defendant. SometimesFor example, for instance, in actions involving co-ownership or joint obligations, the rights of several parties may be so inextricably intertwined that , for all practical purposes, it is impossible to adjudicate the rights of one person standing alone. In such casescircumstances, the procedural rules of many countries require that all such persons be made parties to the lawsuit. In other cases , however, the presence of several individuals may be merely useful, but not absolutely essential, to a resolution of a dispute. In such cases the law simply "permits" the individuals to join in, or be brought into, the lawsuit. It is also possible that persons not originally participating in a lawsuit may find that their rights are affected in some manner, a suit directly or indirectly , by such a suitaffects their interests. To avoid a multiplicity of actions, the law may authorize such persons will often be authorized to intervene in the pending lawsuit , if their own claim has a sufficiently close connection in law or fact with it. . Furthermore, in certain cases a defendant may bring third parties into an action, through a device called impleader, when, for example, these parties are or may be liable to the defendant on account of the claim asserted against him.
Ordinarily, a judgment binds only the parties to the lawsuit. In some situations, however, a large group of persons may stand in the same legal situation, as when they are subject to the same governmental or corporate practice or charge. Each such individual could in theory bring a separate action, but individual actions would be inefficient (and uneconomic if each individual injury was small) and might result in contradictory rulings. To overcome these obstacles, the law in the United States authorizes class actions, in which a limited number of persons sue to vindicate the rights of a much larger group; all members of this class of persons may be bound by the outcome of the suit if the active members adequately represent the absentees. Class actions have been used to challenge racial segregation, to redress overcharges and other unlawful pricing practices, and, more controversially, to seek redress in instances of widespread personal injury. Countries with a civil-law tradition generally do not authorize class actions, though in some limited situations proceedings brought by one person may affect the rights of other persons who are not party to the suit (e.g., sometimes associations, such as consumers' groups, are authorized to sue).
In civil-law countries a person wishing to support the claim of some other party must proceed by way of direct intervention. In the United States an individual who wants to promote the claim of some other party may ask seek to present the court for leave to appear as with an amicus curiae (friend Latin: "friend of the court) so that he may present court") brief, which will contain arguments in favour of the person he supports. In certain cases, furthermore, defendants are authorized to bring third parties into an action when, for instance, these third parties are or may be liable to the defendants on account of the claim asserted against the defendants. This is known as impleader.In general, a the individual supports.
A person's capacity to sue or be sued ordinarily is not affected by if the fact that he person is an alien or nonresident, unless a state of war exists between his home country and the country in which he wishes to sue. Even a state of war generally will does not destroy the capacity to be sued. But , though an alien may experience some disadvantages. Many countries, for For example, many countries withhold legal aid from aliens, particularly if the alien's home country does not grant reciprocity. More important, many European and Latin - American countries require alien plaintiffs to post security to guarantee that they will be able to reimburse the defendant for the expenses of the lawsuit, and sometimes even for additional damagedamages, should they the alien lose the case. As a result of the 1954 Hague Convention on Civil Procedure and numerous other treaties, this security for costs requirement has been eliminated between many countries. In the United States and in most other countries with a common-law tradition, the nationality of a party is not material to the issue of whether security for costs is due; any nonresident of the state where the action is brought is required to post security. The rule is similar in most other countries with an English legal tradition.
Anglo-American procedure traditionally divides lawsuits into two stages: the pretrial stage and the trial stage. At the pretrial stage, the parties notify each other of their claims and defenses and probe their factual foundations; at the trial stage, they or their counsel attempt to prove their factual contentions before a judge or jury, primarily through the oral examination of witnesses. The verdict and the judgment based on it follow immediately thereafter. In practice, the pretrial phase usually ends the lawsuit, either because the parties reach converging assessments of the dispute or because the judge makes a dispositive judgment based on the material uncovered in this phase of the proceedings.
In civil-law countries the procedure typically consists of a series of hearings at which counsel argue their clients' position, submit documentary evidence, and suggest lines of inquiry for the judge to pursue. These preliminary hearings may culminate in the civil-law analogue to trial, a main hearing, sometimes conducted before a multijudge court. The sections below describe the main components of the pretrial or preliminary stages of an action.
Basic fairness requires telling a defendant that he is being sued, so he can either admit liability (and thus avoid the cost of suit) or prepare to defend himself. Typically, such notice must be served promptly. The notice may consist merely of a statement that the plaintiff is suing the defendant and that the defendant must respond by a specified day or be in default. Such a notice is commonly referred to as a summons. To mount a defense, the defendant also needs more specific information about the nature of the claim against him; the plaintiff's first pleading, the complaint, contains that information and is usually delivered to the defendant with the summons.
In common-law countries it originally was necessary to deliver the summons to the defendant in person (personal service). Now, other forms of service to notify the defendant are permissible, provided their intent is to apprise the defendant that the suit is pending. Various jurisdictions authorize certified mail, fax, and e-mail service of process in at least some circumstances. Service by publication in a newspaper is generally authorized only when no other form of service is reasonably possible.
In civil-law countries the summons proper is often combined with the statement of plaintiff's claim in a single document (assignation in France, citazione in Italy). Other formal rules often must be observed, and the documents sometimes must be written on paper bearing tax stamps. The document need not be served to the individual himself; a member of the household, or even a neighbour or janitor, usually will be an adequate recipient.
Lawsuits frequently take a long time, and the passage of time can itself be an injustice. A judgment in an action concerning whether or not the defendant has the right to cut down certain trees, for instance, will be of little value if, while the suit is pending, the trees have already been cut down. For this reason, legal systems quite generally provide so-called provisional remedies that enable the plaintiff to obtain some guarantees that any judgment obtained against the defendant will not be in vain. There appearsto be a rather Provisional remedies involve a conflict between speed—to prevent harm pending suit—and accuracy—an improperly granted provisional remedy will harm the defendant.
Although the legal technicalities are often different, there is a remarkable similarity between remedies in common-law and civil-law countries, although the legal technicalities are often different. The provisional remedies often are frequently available even before an action has been initiated; but , though in such a case, cases an action must ordinarily be started within a short period of time prosecuted promptly after the grant of the remedy.
Some remedies serve to prevent the disappearance either of funds required for the payment of the eventual judgment or of specific property involved in litigation. This purpose is served by attachment (bringing the property under the custody of the law), replevin (an action to recover property taken unlawfully), or other similar remedies. Usually, the The remedy usually is granted by a judge at the request of the plaintiff, upon a showing that certain of facts exist that make it probable that the plaintiff has a good claim and that the payment of the judgment by the defendant may be threatened. Attachment ordinarily involves the seizure of the property by an officer of the court, who will hold it pending final disposition of the case, or, occasionally, involves merely an order to the person holding the property not to dispose of it. Attachment can also be used in connection with intangible property (such as money due or bank accounts). These remedies are frequently granted in a proceeding in which the defendant is not initially heard (i.e., ex parte).plaintiff's rightful recovery is threatened by delay.
Other remedies are intended to stabilize a situation pending the outcome of litigation. In such instances, courts frequently are frequently authorized to issue orders (known in Anglo-American law as temporary injunctions) commanding the parties to do or not to do certain acts that may cause irreparable harm to the other side while the suit is pending. In both civil-law and common-law countries, orders of this nature ordinarily are granted only after a hearing in which both sides appear. Sometimes a court order of an even more temporary and short-lived nature (temporary restraining order) may be obtained without hearing the other sideThese remedies are sometimes granted in a proceeding in which the defendant is not initially heard (i.e., ex parte); except in such cases of urgency, however, concerns of fairness (and in the United States of due process) require notice to the defendant and an opportunity to be heard before any significant judicial order. In countries with a common-law tradition, a person disobeying an injunction issued by a court is guilty of "contempt of court" and can be punished quite severely. In civil-law countries, punishment for contempt is largely unknown, and since because broad orders to defendants may therefore be difficult to enforce, such orders are sometimes limited to specific narrow situations. For constitutional reasons, the U.S. Supreme Court has limited ex parte remedies.
Commencement of actionIn Anglo-American procedure, a lawsuit is generally divided into two stages, the first, or pleading, stage and the trial stage. At the pleading stage the parties notify each other of their claims and defenses; at the trial stage, they or their counsel prove their factual contentions before the jury primarily through the oral examination of witnesses produced by them. The verdict of the jury and the judgment based on it follow immediately thereafter.
In civil-law countries, the procedure consists essentially of a series of hearings at which counsel argue their clients' position and submit documentary evidence; any other form of evidence can be utilized only with a special court order definitely describing the type of evidence and the matter to be proved by it.
In most countries when a civil action is initiated, some form of notice to that effect must be served immediately upon the defendant. This notice may consist merely of a statement to the effect that the plaintiff is suing the defendant and that the defendant must appear in court on a specified day or be in default. Such a notice is commonly referred to as a summons, the successor to the old English "writ" initiating the action. When the notice of the lawsuit consists only of the summons, it is necessary, either at the same or a subsequent time, to supply the defendant with more specific information about the nature of the claim against him. This information is contained in the plaintiff's first pleading, the complaint.
In common-law countries it was originally necessary to deliver the summons to the defendant in person (personal service). Now, other forms of service to notify the defendant, such as leaving the summons with an agent, employee, or a person of suitable age at his home, are also permissible provided their intent is to apprise the defendant that the suit is pending. Service by publication in a newspaper is generally authorized only when no other form of service is reasonably possible.
In civil-law countries the summons proper is often combined with the statement of plaintiff's claim in a single document (assignation in France, citazione in Italy). Other detailed formal rules must often be observed, and the documents sometimes must be written on paper bearing tax stamps. The document need not be served to the individual himself; a member of the household, or even a neighbour or janitor, usually will be an adequate recipient. In Austria and several other countries, service can be effected through the use of the mail.
Developed legal systems need some way to identify the main elements of the parties' dispute: are they disagreeing about facts, about law, or about both? Existing legal systems use three methods to uncover the parties' contentions: pleadings, judicially supervised investigation, and party-driven discovery.
Pleadings are the formal written documents by which the parties set forth their contentions.
They serve several functions including givingPleadings serve to give notice of the nature of the claim or defense,
statingstate the facts that each party believes to exist,
narrowingnarrow the number of issues that ultimately must be decided,
providingprovide a means to determine whether the party has a valid claim or defense, and
serving ascreate a record of what has been actually decided once the suit is ended.
In the English common law the pleadings were primarily designedUntil the middle of the 19th century, common-law systems relied heavily on pleadings to state the legal theory relied upon and to narrow the issues to be tried.
AccordinglyIn theory,
proceedings, the plaintiff and defendantplaintiffs and defendants alternately submitted documents, each responding to the one that preceded it, and narrowed the field of conflict until there remained only one issue, upon which the trial would be based.
Because narrowing the issues was deemed of great importance, the parties were not allowed to plead alternative or contradictory states of fact and the defendant was permitted to rely on only one defense at one time.In the United States during the 19th century, numerous procedural reforms were instituted. The parties were no longer required to plead on the basis of legal theories but instead were to allege a statement of facts constituting the cause of action or defense; the court could then apply any legal theory that was applicable under the facts alleged and later proved. The insistence upon fact pleading had substantial drawbacks, however, especially since the courts demanded a high degree of specificity, made technical distinctions between fact and evidence (forbidding the insertion of the latter in the pleading), and bound the parties to prove the facts alleged or lose the lawsuit. This last rule was particularly harsh since it forced the party to allege detailed facts early in the proceedings when he frequently was not yet certain precisely what facts had occurred.
Modern reforms have gone a long way toward elimination of the injustices of the former system. U.S. federal rules require onlyIn practice, legal fictions and judicial interpretation of pleading rules often defeated these aims, sending the parties to trial with little information about their adversaries' contentions. Starting in about 1850, a series of procedural reforms occurred in England and the United States. The first reforms sought to remedy pleading itself, requiring pleaders to emphasize the facts underlying the parties' cause of action and thereby to better disclose the roots of the dispute (sometimes referred to as "fact pleading"). Disputes about the meaning of "facts" and "cause of action" largely vitiated this effort, however, which led to further changes.
Starting in the mid-20th century, rules and codes of civil procedure deemphasized pleading and sought instead to narrow the controversy through discovery and other pretrial processes. Most American pleading rules now require only "notice pleadings," in which the plaintiff gives "a short and plain statement of the claim showing that the pleader is entitled to relief"
;and the defendant
"shall state in short and plain termsgives a "short and plain" statement of his defenses.
" ThereFor most actions, there is no requirement that legal theory be stated in the pleading or that
onlyfacts be alleged specifically. Other rules
specificallypermit the parties to plead alternative or contradictory claims or defenses and provide that
in the usual case,ordinarily only two pleadings, the complaint and the answer, shall be permitted.
The effect of these changes has been to substantially downgradeThese changes have downgraded the importance of the pleading stage of the lawsuit. The primary function of the pleadings is now only to give a general notice of the subject matter of the suit to the opposing party.
Under modern European codesAs pretrial stages develop the facts, parties can readily amend their pleadings.
Under modern civil-law systems, pleading problems have not been as pronounced as in Anglo-American law, in part because these systems rely on early and frequent judicial supervision to clarify the dispute. European pleadings consequently tend to be
, with fewer distinctions between ultimate facts, evidentiary facts, and matters of law. The
narrowing of issues is generally a judicial function, to be achievedjudge narrows issues either at a special preliminary hearing or even at a plenary hearing before the full court
; the creation of a permanent record is a function of the final judgment, which, unlike the general—and therefore uninformative—verdict in an American jury trial, must ordinarily contain a description of the facts and. The final judgment describes the facts and the legal reasons on which it is based. Pleadings
therefore serve primarily toin modern civil-law systems therefore perform the task that common-law pleadings have only recently assumed—to inform the court and parties concerning their respective claims
, a function of limited importance, since under some codes (such as the Austrian Code of Civil Procedure of 1895) only statements by the parties or their counsel in open court are fully effective for this purpose.
In addition, amendments or changes can ordinarily be made without difficulty, though, in order to avoid dilatory tactics and surprise, some limitations exist.The summons or analogous document
by which action is initiated by the plaintiff quite generallycommands the defendant to
appear in courtrespond to the complaint within a specified number of days after its service. In
case of failurecommon-law systems, if a defendant fails to appear, he
is threatened withmay suffer a "default" judgment. In
both the Anglo-American and the continental Europeancivil-law systems the
appearance in court is normally a legal fiction. The defendant "appears" by serving the plaintiff with a notice indicating that he will defend the lawsuit and giving the name of the attorney or similar representative who will act for him in this connection. Certain other procedural steps indicating a willingness to defend the lawsuit are sometimes considered the equivalent of such a noticecourt will proceed to a plenary hearing if the defendant fails to appear.
The time limits for the
appearance vary greatly. European countries frequently provide a great many different time periods varying with the distance between defendant and the court where the action is pending. In some countries the time to appear is fixed by the court. Less attention is usually paid to geography in the United States. In New York, for instance, the defendant must appear in 20 days if the summons was served personally, and 30 days if some other form of service was employed.In some countries, where appearance involvesdefendant's response vary from a few weeks to a few months, depending on source attached says"generally only has 35 days" the defendant's location, circumstances, and the means by which the process was served. In some countries that require either actual presence in courts
,or at least the delivery of documents to the court (e.g., Italy
,and Sweden), plaintiff and defendant may both be required to appear at the commencement of an action.I did not find
As noted above, in countries whose procedure is based on English common law, the concentrated trial, traditionally before a jury, serves as a climax to earlier procedures. At this time, the parties attempt to prove the facts at issue, primarily through the presentation of oral evidence. The climax of a European proceeding, however, is the hearing before the full bench of judges—a hearing that is essentially devoted to argument of counsel and the presentation of documentary evidence. In both legal systems there are procedures to prepare for the trial or hearingAfter the pleading and appearance stage, both common-law and civil-law traditions involve a preparatory phase that uncovers and organizes evidence for use and trial and, increasingly, may serve to resolve actions without a trial.
In Anglo-American procedure a the preparatory phase can be devoted to numerous serves several purposes. First, since a jury trial is required only when there are disputes as to matters of fact, the court may be asked it may allow the court to make a decision on those cases that can be decided purely on legal mattersgrounds, without any regard to the facts in dispute. This will be true, for example, when the court lacks jurisdiction or when it is obvious that a dispute between the parties as to the facts is more apparent than real. In these cases the party concerned will address a motion to the court (either a motion that can be decided without waiting for a full trial. Examples include motions to dismiss for lack want of jurisdiction or a motion for summary judgment) that can be decided immediately by a judge sitting alone, without waiting for a trial date.It should also be noted that there may be a pretrial hearing before a judge, at which the judge will , motions to dismiss for failure to state a claim (historically called a demurrer), and motions for summary judgment, in which the moving party demonstrates (sometimes through information produced at discovery) that one side lacks any evidence on some critical issue of fact. If granted, such a pretrial motion ends the lawsuit. Even if such pretrial adjudication is not possible, a judge at a pretrial hearing may attempt to narrow the issues in controversy and, if possible, try dispute and perhaps to settle the case, thus making the trial unnecessary. If the suit has not come to an end as a result of such preliminaries, the parties must prepare for trial. At the trial, evidence is presented in an uninterrupted fashion, without any possibility for additional proof after its close; each side in the end must stand or fall on the testimony presented by it.The European system is in some ways similar to the Anglo-Americanpretrial phase does not end the lawsuit, it nonetheless will pave the way for trial through rulings on discovery requests and through more precise formulations of the disputed issues.
The civil-law system has an analogous preparatory phase. Frequently, such questions as jurisdiction can be decided in the preliminary phase, without waiting for the full hearing. The preliminary phase may also serve to narrow issues and produce a settlement. Furthermore, proof proceedings may sometimes occur be received during the preliminary phases rather than at the main hearing; , though in Austria some systems the full court holds hearings devoted to all aspects of the case, without distinguishing between matters considered preliminary and those more pertinent to the main hearing.
Because court calendars for jury trials are often extremely crowded, especially in the larger cities, the parties involved in a case often will resort to pretrial motions if there is any remote possibility that such an action would lead to a resolution of the dispute without trial. The party making the motion summons his opponent to appear before a judge designated for that purpose and transmits at that time copies of the papers pertaining to the motion, such as sworn statements (affidavits) of persons having knowledge of the facts or memorandums concerning the applicable law; the other side may submit opposing papers. At the time the judge hears the motion, attorneys for both sides argue briefly concerning the matter in question; no witnesses are heard. In addition to cases in which there may be a lack of jurisdiction, it may also occur that the right asserted by the plaintiff does not exist and that he is not entitled by law to relief; in either case a motion for dismissal would be made.
On a somewhat different plane stands the motion for summary judgment. Frequently it appears that the issues of fact raised in the pleadings do not really exist. In such a case, since the outcome would not be in any reasonable doubt, a trial would be a mere formality. To avoid the needless expense and delay of a trial, a motion for summary judgment can be made. (The rules relating to this motion are strict so as to abridge neither the right to a day in court nor the constitutionally guaranteed right to a jury trial.) The sole function of the judge is to determine if, from all the available evidence, there exists a material issue of fact that is honestly disputed. If he finds a material issue of fact to be in dispute, he must deny the motion and set the case down for a future trial. If he finds no such issue, he may grant a final and binding judgment.
In those civil-law countries that have a preparatory phase before a single judge and a final hearing before a three-judge bench, procedural defenses similar to pretrial motions are ordinarily raised before the single judge. Sometimes, however, in cases of lack of jurisdiction or lack of competence a hearing is held before the full court. Where the issue is one of territorial competence the result may be the transfer of the case to the proper court. General summary proceedings have lost considerable importance in France and have been abandoned completely in Italy, but in actions involving claims based on negotiable or other written instruments, for instance, special procedures have been developed that permit a judgment to be obtained with great dispatch, particularly if the defendant has no effective defense on the merits.
In general, English common law lacked procedural devices aimed at giving the parties and the court advance notice of the factual contentions of both sides prior to the trial of the action. Whatever information was obtained by a party about the opposing party's case was received from the pleadings. This absence of discovery devices was a reflection of a judicial philosophy that held that surprise was a proper tactical device and that withholding information from one's opponent until trial would prevent an unscrupulous adversary from fabricating evidence. Limited discovery devices were, however, available in the equity courts.
Reforms were instituted in the 19th and 20th centuries. A mid-19th-century New York code, for example, provided that each party could serve written questionnaires on its adversary, could compel the adversary to produce documents prior to the trial, and could, under some circumstances, take the oral deposition of any witness, whether or not a party to the action. Even with these changes, discovery proceedings were limited. In 1938 new U.S. federal rules expanded the discovery process further. It was hoped that more complete disclosure would result in a more thorough preparation and presentation of cases, Discovery proceduresThe trial or main hearing examines and resolves the contested facts. Legal systems differ substantially, however, as to whether and how facts will come to light before trial. Civil-law systems have long relied on judicially guided investigation to uncover relevant facts. Historically, common-law systems relied, largely unsuccessfully, on notice pleadings and trial testimony for the same purpose. Because the parties lacked tools to compel their adversaries to disclose relevant information before trial, trials in common-law systems sometimes resulted in unexpected testimony and surprise revelations by witnesses. Anglo-American courts of equity, by contrast, heard no live testimony, relying instead on written summaries of testimony gathered out of court. The central legal reform of the 20th century in the United States combined these two common-law traditions, preserving the concentrated trial and its live testimony but giving to the parties the power to compel each other, and others unconnected with the lawsuit, to disclose relevant information in advance of trial.
The goals of this development were straightforward: to allow more thorough preparation and presentation of cases; to encourage pretrial settlement by making each party cognizant of the true value of his claim, and ; to expose, at an early stage in the proceedings, insubstantial claims that should not go to trial.Thus, a party may seek discovery not only of information that would be admissible at trial but also any information that, though not admissible, might lead to the discovery of admissible testimony. Some limitations remain, however; materials ; and to reduce the element of surprise as a factor in civil litigation. Coupled with the move to notice pleading, discovery made the pretrial stage, rather than trial, the center of gravity in most civil litigation in common-law systems.
In 1938, new U.S. federal rules dramatically established a model for the discovery process. During succeeding decades, the state courts, where most litigation occurs, followed suit, either adopting the federal rules as their procedural system or amending state legislation to permit broad pretrial discovery. Such regimes gave lawyers the power to require adversaries and other witnesses, in advance of trial, to disclose evidence on which they intended to rely, to respond to written or oral questions under oath, to produce documents and tangible objects (such as land, buildings, or machinery) for inspection, and to submit to physical or psychological examination when warranted. Most discovery devices may be utilized without prior court approval, and the procedures take place in lawyers' offices. Judicial intervention ordinarily occurs only when there is a dispute about discovery.
Even in this broad-reaching regime of discovery, some limitations remain. Communications between a party and his attorney are protected by the attorney-client privilege. Materials and expert testimony prepared in anticipation of the pending litigation by or for a party , for instance, are not discoverable unless the party seeking discovery shows a substantial need for the information and an inability to obtain substantially equivalent information by alternative means. Most discovery devices may be utilized without prior court approval and the procedures take place in lawyers' offices; judicial intervention must ordinarily be sought only when there is a dispute concerning the permissible scope of discovery or when there is a need to impose sanctions for failure to obey a court order compelling discovery.With Outside the United States, discovery is substantially more limited. In other common-law systems discovery is limited to documents that are admissible as evidence, and, unlike American discovery, often to documents that the opposing party can identify specifically. Civil-law systems rely on the judge to order the production of documents and witnesses as their relevance emerges from the series of hearings. As a result, with the exception of procedures to secure, in advance of lawsuit, evidence that is in danger of being lost (for instancee.g., because a witness may die), there are few procedures in civil-law countries to enable a party to secure information to use later. There are several reasons for this. The absence of a concentrated trial makes it less important to have all information available at once, and the greater role given the judge in bringing out factual matters further reduces the need to obtain information in anticipation of the hearing.Consequently, discovery of Discovery of documents is usually possible only in very limited cases, although though a party that actually intends to use a document has to make it available to the other side. In France, for instance, production of documents to the other side is possible in bankruptcy and related commercial matters, and it is required in commercial cases generally that books be produced for inspection by the court. Traditionally, discovery of documents has been unavailable in noncommercial cases; legislation in 1965 did authorize the judge to request the parties to produce any documents, but this is production before the court, not for a party's use as such.
The discovery process frequently makes may make the parties aware of significant issues not previously considered or may make it clear that an issue considered important before discovery is no longer so. In order to provide a means for reflecting these changes and also to assist in simplifying the issues to be tried, shortening the time for trial, and possibly eliminating the need for trial completely, the court may direct the parties to appear before it for a pretrial conference. At the conference, Pretrial conferences involve no testimony of witnesses is heard , and no formal adversary proceeding takes place. The attorneys representing the litigants, and sometimes the parties themselves, with the assistance of the judge, try to reach agreement on amendments to the pleadings, the elimination of issues raised at an earlier stage that are no longer deemed pertinent, and the crystallization of the real, controversial issues that must be determined at the trial. An The pretrial conference also offers an indirect benefit of : the pretrial conference is the possibility that a settlement of the case will be reached by the parties without the necessity of parties will settle without trial. Although some authorities feel that this should be a primary goal of the pretrial conference, the prevailing view is that "settlements must be a by-product rather than the object of pretrial, the primary aim being to improve the quality of the expected trial rather than to avoid it." It should be noted, however, that a considerable number of lawsuits, and the vast majority of personal injury cases, are settled before a final verdict.
In civil-law countries, procedures somewhat analogous in purpose to pretrial conferences are fairly prevalent. Since such Civil-law systems need no separately demarcated pretrial conference, as they use one or more of the series of preparatory hearings for analogous purposes. Since preliminary hearings are ordinarily held before a single judge , rather than a formal three-judge court, a considerable saving amount of judicial time may resultcan be saved. Under the French code of civil procedure, each case is assigned to a special "prehearing" judge, who sets time limits for the exchange of pleadings, decides how many pleadings after the original summons and complaint shall be used and when they shall be submitted, and may penalize dilatory parties by delivering a default judgment or, if both sides are dilatory, by striking the case off the calendar. In additionFurther, he the judge may call in the parties' counsel for a conference and must make sure that all documents that the parties intend to use at the main hearing have been filed. He may also call in the parties themselves for a conference concerning a The judge also may convene a conference of the parties to discuss a possible settlement. He The court must, in short, either settle the case or put it in shape for the formal hearing. Under the 1976 reforms to the West German Code of Civil Procedure, the parties may be directed, through a preliminary written or oral procedure, to prepare the main hearing in such a manner that it can lead to an immediate decision of the case.
The climactic and decisive part of an Anglo-American civil action is the trial, in which the parties present their proof in a concentrated fashion to a single judge and sometimes to a jury. The climactic event in a lawsuit based on European codes is the hearing before the full court. The differences between these two procedures are so fundamental that discussion of the two will be essentially separate.
The Anglo-American jury trialMany of the procedural rules governing trials in civil actions have been designed to reflect the basic premise that the function of the jury is to determine the facts of the case, whereas the function of the judge is to determine the applicable law and to oversee, which may occur in several widely separated segments.
If the suit has ended during the pretrial stage, the parties must prepare for trial, which in the United States may be held with a jury. At the trial the parties present evidence in an uninterrupted fashion, without any possibility for additional proof after its close. In common-law systems many of the procedural rules reflect the division of responsibilities between judge and jury: the jury determines the facts of the case; the judge determines the applicable law and oversees the parties' presentation of the facts to the court. The consequences of the presence of the jury have been so pervasive that even in cases tried by a judge without a jury, the jury. These procedural rules designed to accommodate jury trials remain largely intact, with the important exception, of course, that even though, in common-law systems other than that of the United States, in almost all cases the judge will determine both the facts and the law.
Although some variations may exist, a trial is conducted most frequently in the following manner. The attorneys for A common-law trial typically begins with the attorneys for the plaintiff and the defendant make making opening statements to the jury, outlining what each conceives to be the nature of the case and what each hopes to prove as the trial proceeds. Next, the attorney for the plaintiff presents his case by calling witnesses, questioning them, and permitting them to be cross-examined by Presentation of the plaintiff's case follows. The plaintiff's lawyer introduces documents and calls and questions witnesses, whom the attorney for the defense ; when the former then cross-examines. When the plaintiff's attorney has concluded his presentation, the latter defendant's attorney frequently will ask for a dismissal of the suit for failure of plaintiff , claiming that the plaintiff has failed to establish a prima facie case (that isi.e., a case sufficient until contradicted by evidence); if this is unsuccessful, he . If that motion fails, the defendant will call and examine witnesses in order to establish his defenses, and these witnesses are subject to cross-examination by the plaintiff's attorney. The attorneys for each side then make a closing argument to the jury, marshaling the evidence presented in a light most favourable to their respective clients; the .
When the case is tried before a jury, the judge will instruct the jury on the applicable law; , and the jury will retire to deliberate in private until it reaches a verdict, which will then be announced in open court. In cases without a jury, upon completion of the closing arguments, the judge may render a decision immediately or may take the case under submission for a later decision.
Although the The parties, and not the judge, are charged with have the primary obligation to call and question the witnesses, the judge must act as arbiter in all disputes between the parties concerning the admissibility but they must do so in accord with the law of evidence. When one party objects to the introduction of testimonyany evidence, the judge will decide whether or not, in accordance with established rules of admissibility, the evidence sought to be introduced is to be heard by the jury. In keeping with the adversary system, the judge is not entitled to rule that evidence is inadmissible unless a party objects to its introduction. acts as arbiter, deciding whether and under what conditions the evidence may be admitted. The party objecting to the evidence must state the grounds for his the objection, and the judge must permit the jury to hear the evidence unless the specified grounds given by the attorney are applicable. Even within this narrow framework, the judge's role is limited, for the rules of evidence leave little room for discretion on the part of the judge.apply.
When the party having the burden of proof of an issue has completed its presentation to the jury, the opposing side may ask the court to rule as a matter of law that the evidence presented does not provide sufficient proof for a reasonable jury to find for the party who presented the evidence. When a judge so findsIf the judge agrees that sufficient proof is lacking in a case tried by a jury, he may "direct a verdict," thus in effect withholding from the jury the right to rule independently on the issues at all. It has been held that this device, if properly applied, is not a violation of verdict" (sometimes called "granting judgment as a matter of law"), which in effect removes the case from the jury. If used properly, such a verdict does not violate the constitutional right to a jury trial because similar devices have historically been available to judges and because a verdict is directed only when there has not been sufficient evidence introduced to create a material issue of disputed fact for the jury to decide. The granting of a directed verdict results in a final judgment and the termination of the trial.
It is the obligation of the judge, at the At the conclusion of the trial, to the judge must instruct the jury as to the applicable law governing the case in order to guide it in arriving at a just verdict. Although this is solely the judge's obligation, in In practice the parties will propose instructions for his the judge's consideration. The judge then selects from among the proposals that have been submitted and offers the parties the opportunity, out of without the hearing of the jury present, to object to any proposed instruction that they deem to be incorrect. Failure at this time As with the introduction of evidence, failure to object generally precludes a party from arguing later that later—on appeal or in a motion for a new trial—that the instructions given were incorrect.
There has been much debate as to the relevance of jury instructions generally, some commentators urging that the jury seldom understands the instructions given or often ignores them. The charge, however, that the judge gave improper instructions to the jury is one of the most frequent grounds of error offered by parties when appealing an adverse decision.
In addition to the judge's obligation to charge the jury on the law, U.S. federal rules and some other procedural codes permit the judge to comment on the evidence. When it is permitted, the judge may give his opinion with regard to the merits of the case so long as he makes clear to the jury that this opinion is not binding and that the jury, not he, is solely responsible for finding the truth as to the facts in dispute.
In almost all cases the judge will instruct the jury to return a general verdict—that is, a decision merely stating in general terms the ultimate conclusion that it has reached (for examplee.g., the award of X dollars to the plaintiff or a verdict that the plaintiff recover nothing). This form of verdict gives considerable leeway to the jury and permits, if it does not encourage, some deviation from a strictly logical and technical application of the law to the facts. An alternative that offers greater control over the decision-making process is the special verdict whereby , which requires the jury is instructed merely to answer a series of specific factual questions proposed by the judge, who will then himself determine the verdictproper conclusion, based upon the jury's responses to the questions asked. Because of the difficulty in drawing up questions that would cover completely the issues of the case, the special verdict is cumbersome and not frequently used.
After the completion of a trial is completed, either party may request the trial judge to vacate the verdict and grant a new trial. Innumerable Various grounds are available for requesting a new trial, including , for example, judicial error, excessiveness of the verdict, and misconduct by jury misconduct. Considerable discretion is given the judge, and a or counsel. The judge has considerable discretion in ruling on such a motion—a decision to grant a new trial will is seldom be overturned on appeal. The grant of a new trial, unlike the directed verdict, does not result in the judge substituting his opinion for that of the jury but only mandates that another jury to hear the case at another trial. But in In the very limited cases circumstances in which a judge may grant a directed verdict, he can also substitute his decision for that of the jury by a judgment not on the verdict.
In If a civil-law countries the hearing before the full court is the essential part of a civil action. At that case has not ended as a result of the preparatory hearings, it culminates in a main hearing, sometimes held before a multijudge court. Like the common-law system, the main hearing involves a comprehensive inquiry into and judicial ruling on the parties' remaining factual and legal disagreements. Unlike in the common-law system, such a hearing need not involve any testimony by witnesses see note according to this site. they can testify: http://www.rbs2.com/cc.htm //see word document for further explanation and may be held over several sessions separated by substantial intervals. At the main hearing, counsel for both sides present argument their arguments as to the law and the facts of the case and submit documentary evidence that has not previously been presented. The hearing serves several purposes: it more fully informs the court of the legal and factual contentions of the parties, both legal and factual; it narrows the issues that may have been raised by the original pleadings; and it leads to is the submission of at least one type of evidence, namely, documentary evidencebasis of the court's judgment. The extent of proof presentation and the narrowing of issues vary from country to country.
In countries such countries as Italy and France, which divide the lawsuit into a preparatory and a final stage, the judge in charge of the preparatory proceedings attempts to narrow the issues and may, for this purpose, examine the partiesevidence. In countries where there is only one stage, this winnowing process takes place during the full hearing. In general, in most civil-law countries, evidence other than documentary evidence may be introduced only pursuant to a specific court order specifying detailing the matter on which such evidence is to be received and the form that such evidence is to take (witnesswitnesses, experts, etc.). But again two forms are possible. Under the Austrian Code of Civil Procedure, the court that decides the case must hear the witness, expert, or whatever. In such a case, an order will be made at the hearing and will be implemented by the calling of the witness or expert. Subsequently the arguments of counsel may continue, interrupted perhaps by a new proof order, should the court feel this to be necessary. In France and Italy the court or the judge of the prehearing phase will make an order for the hearing of a witness or expert, but the witness or expert will be heard by a single judge not ordinarily part of the court, who will prepare a summary of the testimony. Later on, that summary will be submitted to the court; there will be additional argument and finally a decision will be made based on the record so made. Because witnesses or experts are always acting pursuant to court order, they are never considered a party's witness.
Various types of proof proceedings are generally available in civil-law systems, including (1) hearing of witnesses who are not themselves parties; , (2) the expert's report; reports by experts, and (3) the examination of parties, either informally or pursuant to formal interrogatories.
A party wishing that a witness to be heard must make an appropriate request. To prepare its opposition, informing the requesting party must inform the other side of the name of the witness and the subject on which the witness is to be heard; this is to enable the party to prepare its own side of the case. At the examination the judge will ask the witness to state in narrative form what he knows about the precise issue mentioned in the proof order; subsequently, the judge may ask additional, clarifying questions. If counsel for both sides wish to propose questions, they must ordinarily put them to the judge, who presents them to the witness. Civil-law systems differ among themselves concerning the extent to which counsel, as opposed to the judge, will conduct examination of witnesses. Japan, for example, often permits lawyers to question witnesses directly; many European systems limit counsel to suggesting questions that the judge might ask. A more or less extensive summary of the testimony is prepared immediately by a clerk under the direction of the judge and is signed by the witness, the judge, and the clerk. In the case of For witnesses who live too far away from the court where the action is pendingproceedings, interrogation sometimes takes place in a their local court. The examination Examination of an expert is obtained in the same manner as that of a witness. Although the parties may suggest an expert to the court, those chosen experts ordinarily are ordinarily taken from a list of experts approved by the court. The expert is considered an impartial auxiliary of the court; his use of an expert is ordinarily limited to cases involving some technical or scientific problem. The court or judge issuing the proof order may authorize him the expert to make and report on certain scientific investigations (e.g., in an automobile accident case, to examine the car involved) and to report thereon.
Parties are not considered witnesses in some civil-law systems, and different procedures for parties ordinarily exist. A court is usually on the grounds that a party's testimony in his own favour is likely to be discounted and that it is on the other hand harsh to ask him to testify against himself. Even in such regimes, however, the court usually is authorized informally to question parties, ordinarily not under oath, either on the court's own motion or on the request of a party. Though this questioning is designed mainly to narrow issues, it does also have a function in the gathering of evidence. In Austria and some other countries the judge questioning a party may put the party under oath if he feels this to be necessary for an elucidation of the truth. In other countries a party may be challenged by his adversary to make a statement Other civil-law systems—those of Austria and Japan, for example—permit parties to testify under oath.
In European courts, rules as to the admission of evidence are ordinarily quite liberal since there has been no need to develop complex rules to keep certain evidence from a jury. It is generally required that evidence one respect, civil-law systems use rules of evidence that are quite simple and liberal in comparison with those employed in common-law systems. Evidence need only relate directly to the facts in at issue and be neither superfluous nor unduly repetitious. But, since judicial review of lower court decisions on the admission of evidence is frequently quite limited, these requirements have never been developed into the detailed rules existing in Anglo-American lawIn other respects, civil-law principles of proof seem more restrictive: as noted, some systems are reluctant to force parties to testify, and the power of the judge to order production of documents is often narrower than in the United States.
When proceedings are terminatedend, the court that has considered the case will render a judgment. In such a case one speaks of a what is called a final judgment. Judgments deciding some procedural matter or intermediate substantive issue but not terminating the proceedings are known as termed interlocutory judgments. The forms of such judgments differ substantially between and within the world's legal systems.
In American practice the judgment of a court after a jury trial is presented in a stylized document that merely recites certain relevant identifying data, such as the names of the parties, the fact that a jury verdict has been rendered, and the disposition to be made. No detailed grounds are given for the decision. If a judge decides a case without a jury, he is often required to indicate the In nonjury trials, judges usually must write a document (or accept one presented by the parties) setting forth the factual and legal bases for his the decision in order to facilitate appellate review; in practice, such findings, too, are often rather stylized. Courts sitting without juries sometimes prepare, in addition, an opinion in which their reasoning is explained in narrative form.
Judgments in civil-law countries quite generally consist of not only statements indicating the names of the parties and the like and the decision of the court but also an opinion in which the court explains its identifying data, the decision, and a detailed explanation of the decision. The opinion may vary in style. In Germany and Austria it is narrative in nature, as in the United States; in France it is traditionally cast in the form of one long sentence consisting of a syllogism using the facts and the applicable law as premises. When the court consists of several judges, it is frequent practice in Anglo-American countries for judges who disagree with the decision of the majority to prepare and file dissenting opinions, in which they explain the reasons for their disagreements. In civil-law countries, such dissenting opinions are rarely allowed; indeed, the courts are generally forbidden from disclosing the position taken by an individual member.
Quite generally, originals of judgments are filed in court clerks' offices; the parties may then procure copies to use as they see fit. In some countries the rules for the formal preparation, signing, and filing of judgments tend to be quite technical and complex; this is much less so in the United States. Furthermore, judgments must frequently be written on stamped paper or presented to some tax office for the payment of a tax.
Judgments generally have a continuing effect on parties and sometimes others long after they are rendered. In some situations the doctrine of res judicata will grant a binding effect on issues determined in the lawsuit. The doctrine is intended to avoid excessive litigation and is known in some form in most countries (also called claim preclusion) forbids the parties to challenge or reopen the case after the verdict has been rendered and all appeals have been exhausted. This doctrine aims at avoiding repetitive litigation and, to a lesser extent, at preventing successive courts from issuing conflicting judgments. Thus, it is uniformly held in the United States that, when a valid and final personal judgment in an action for the recovery of money is rendered in favour of the plaintiff, the plaintiff or his legal successors are prevented from instituting an a second action against the defendant on the same cause. In effect, what was considered in the first action, or even that which should have been considered but was not, cannot form the basis of a second action. This does not claim. The doctrine of res judicata does not, however, preclude a second lawsuit based on a different cause of action or claim, but the claim.
The related doctrine of collateral estoppel will preclude (also called issue preclusion) precludes the parties from re-litigating in the relitigating, in a second suit based on a different cause of action claim, any issue of fact common to both suits that was actually litigated and necessarily determined in the first suit. The At the start of the 20th century, the doctrine of collateral estoppel traditionally had been or issue preclusion was limited to successive lawsuits involving the same parties to the past action. For instanceexample, A, as the driver of B's truck, is involved in an accident with a car driven by C. If A sues C and recovers a judgment because of the negligence of C, the traditional older rule has been was that, in a subsequent suit filed by B against C for damage to the truck, C is not precluded from claiming that he was not negligent, since B was not a party to the first suit and would not be bound by the decision in it. Many Most U.S. courts now , however, are holding hold that, even though the same parties are not involved, when the issues are the same and when the defendant has presented a complete and full defense had adequate opportunity and incentive to litigate an issue in the first trialcase, collateral estoppel will now bind him to the finding in the first suit that he was negligent in the occurrence.The principle of res judicata is followed in civil-law countries as well, but there are differencesthe defendant will be bound in subsequent litigation. This rule of extended preclusion is not recognized in most other common-law countries.
Civil-law systems also follow the principle of res judicata, though a somewhat narrower one. Substantively, res judicata applies generally only in new proceedings between the same parties (or their heirs or successors in interest) , and the new proceedings must that involve the same type of action (the same bases for the action and the same demand for relief). There is, however, no collateral estoppel, though a judgment that is no longer subject to any form of review (appeal, etc.) is binding as to all procedural rulings. In effect
In all legal systems, res judicata becomes procedurally operative only after all normal means of review have been exhausted or the time limit to use them has lapsed.
All countries have enforcement procedures that are intended to overcome require the resistance of a losing party who fails to comply with the judgment of a court. This is usually known as the enforcement or execution of a judgment. Rules Systems differ substantially in two respects: the practical administrative enforcement of judgments (Will an official of the state seize the loser's property or otherwise enforce the judgment?) and the formal rules that guide and limit such enforcement (Is some property exempt from judgment; how long a time must elapse before enforcement may occur?). Reliable evidence on the first point is scarce, but experienced practitioners suggest that it is, in general, easier to enforce a money judgment against a viable business concern than against an uninsured individual.
Formal rules regarding enforcement vary greatly, and they are usually highly technical and thus can be dealt with only generally. In the United States a party who obtains a judgment for a sum of money is entitled normally to monetary judgment may normally avail himself at once of the procedural devices designed to enforce the judgment. The fact that the period for appeal has not yet passed or that an appeal is filed does not, of itself, affect the right to enforce the judgment; the losing party, seeking to postpone enforcement of the judgment pending appeal, must request such relief either from the trial court or the court to which the appeal is taken. Frequently, such a request will be granted if the losing party posts a bond or other security to ensure that the delay in enforcement will not adversely affect the rights of the winning party should the appellate court affirm the judgment of the trial courtBy contrast, in many civil-law systems judgments cannot be enforced until all appeals have been heard or until the time for such appeals has run out. Each system recognizes exceptions to its general principle: losers in common-law jurisdictions may request a stay pending appeal, and winners in civil-law systems may request preappeal enforcement.
When the judgment results in an order to the losing party to do or refrain from doing some act, the a common-law court has the power to enforce the judgment by punishing a party who fails to comply, by , with a fine or a jail sentence, a party who fails to comply, on the grounds that his disobedience constitutes "contempt of court." Some, but not all, civil-law systems grant courts similar powers; others—as, for example, Japan—do not, requiring the resort to indirect means of enforcing nonmonetary judgments (e.g., seizure of property).
When the judgment results in an award of money monetary damages, the usual procedures for enforcement are the "levy of execution" on property belonging to the defendant or an execution against his income. All property that is not exempt by a specific statute, as well as income earned and debts owed by third persons, are is subject to this enforcement process. Exemptions generally are given for such necessities as An official generally seizes nonexempt property and sells it at a public auction, with any excess proceeds returned to the defendant. Exemptions differ widely among legal regimes in their relative generosity to the judgment debtor, as the loser of a lawsuit is sometimes called. Some exempt only modest necessities (e.g., wearing apparel, tools and implements used in earning a living, household furniture, and such personal items as wedding rings, family Bibles, and family photographs. The attorney for the party in whose favour the judgment has been rendered or the clerk of the court in which the judgment was obtained issues a command to the sheriff to seize the property. Once the sheriff has taken possession of the property, he sells it at public auction and, after deducting his fees, turns over to the judgment creditor only those proceeds of the sale necessary to satisfy the judgment; any excess is returned to the defendant.
The remedy of garnishing the earnings of the defendant, although generally permitted, is accompanied by certain safeguards to prevent oppression. Thus, only if the debtor fails to make payments voluntarily, can his wages be seized, and even then only a limited percentage of the wages.
Rules for the enforcement of judgments in civil-law countries are in some respects similar to those in the United States or other common-law countries, although some differences do exist. Frequently, judgments cannot be enforced by execution or in some other way until all appeals have been heard or until the time for such appeals has run out, but the precise rules differ greatly from country to country and often depend on the subject matter of the action or the court to which an appeal is taken. In Germany, for instance, it is sometimes possible to receive an execution on a judgment still subject to appeal, but the money recovered on execution must be paid into the court clerk's office pending determination of the appeal.
In all countries there are detailed rules exempting certain types of property from seizure, but continental European rules are much less generous toward the debtor than corresponding rules in the United States. In France, for instance, all wages exceeding a stated amount may be seized, whereas in New York no more than 10 percent of wages may ever be taken. If several judgments exist against a debtor, threatening to exceed his available assets, other procedures are available to ensure that these assets will be distributed fairly. To some extent, such procedures replace bankruptcy, which in some European countries is available only to businessmen and not to private debtors.
Problems arise in connection with judgments ordering a party to do or not to do a certain act, since contempt procedures, outside of mild fines or jail sentences available to secure the maintenance of order in the courtroom, are generally unknown in Europe. For this reason, Italian judgments will order the performance of a specified act only when, in the case of disobedience by the party, the act can be performed by a substitute appointed by the court. For instance, if the defendant is ordered to tear down a wall and refuses to do so, the court may appoint a contractor to perform this operation. French courts have not limited themselves so narrowly and have developed a kind of civil penalty in order to compel compliance with their judgments.
Generally, the prevailing party recovers not only the amount of the judgment but also the costs and expenses of the suit. These include filing fees, government taxes, witness fees, and the like, but not funds spent in the preparation of the case. In countries like Austria and Germany that regulate the fees of attorneys by an official schedule, such fees are ordinarily recoverable. In the United States, where such fees normally are not regulated by schedule, they usually must be borne by the party that has incurred them.
); others include homes up to a certain value, motor vehicles, and other assets. The successful plaintiff may also seize some portion of the future earnings of the defendant. Such seizures, called garnishment, are limited in order to allow the wage earner to survive while he is satisfying the judgment. As with property, the portion of wages exempt from garnishment varies with the regime.
Bringing a civil lawsuit sometimes costs a great deal; most of the cost will consist of lawyers' fees. All systems permit the recovery of some costs; they differ in whether those costs include lawyers' fees. If attorneys' fees are recoverable, a plaintiff will be made whole, recovering not only damages but also the costs of suit. On the other hand, in such a system parties with less than sure claims may hesitate to bring suit—for fear they may both lose and be liable for their adversaries' costs. If the winner cannot recover fees and costs, he will to that extent suffer an uncompensated loss; on the other hand, in such a regime parties with meritorious but less than certain claims may hesitate less to prosecute them. In the United States, the general rule is that the prevailing party does not recover lawyers' fees, but over the past three decades many statutes have granted such fees to prevailing plaintiffs in cases involving various claims thought to involve the public interest. Outside the United States, the prevailing party generally recovers legal fees, but the victor's recovery is often limited to a "reasonable" fee—which may not cover the entire amount actually paid by the victor.
Immediately after judgment is granted, the losing party may ask the court of first instance to reconsider, giving it a chance to correct its own errors. In Anglo-American courts this procedure is known as a motion for a new trial. In some cases (if, for example, e.g., if there is newly discovered evidence), procedures analogous to motions for a new trial exist in European countries. In certain countries and in some states of the United States, an appeal of a judgment that is not a final decision can be made in addition to appeals of final decisions.
The appeal process is somewhat different in civil-law and common-law countries. In Europe the appeal from the court of first instance to the intermediate appellate court ordinarily involves a reexamination of the entire case, both the law and the facts, and new evidence frequently can be introduced. An appeal to the supreme or highest court is restricted to matters of law. In the Anglo-American system, on the other hand, both the intermediate appellate court and the supreme court examine only the written record created in the court below and do not receive new evidence. Furthermore, review is generally restricted to matters of law, though the scope of review is broader in the intermediate appellate court than the supreme court. Rules of appeal in all systems tend to combine the desire that justice be done and error be corrected with the desire to find some point at which the proceedings will end and judgment will be deemed final.
A fundamental principle underlying the function of appellate courts in the United States is the concept that the court serves only to review allegations that errors of law were committed at the trial. In no sense can the appeal be considered a retrial of the entire case. Factual determinations made at a jury trial are not reviewable on appeal except when presented in the context of a legal question. Factual determinations made by a judge in cases tried without a jury are reviewable on appeal, but even in such cases, appellate courts are reluctant to set aside such determinations unless clearly erroneous.
The party appealing the judgment must specify the errors that allegedly occurred at the trial; generally, the appellate court will consider only those points advanced by the appealing party. Moreover, the court will, with few exceptions, refuse to consider an allegation of error, unless the issue had been raised during the initial trial.
Because appellate courts do not hear witnesses or permit the introduction of new evidence on appeal, it is necessary that the record of the trial be made available and include a transcript of the proceedings, original papers, and exhibits. Both parties are required to submit written "briefs" to the court containing legal precedents and the arguments in support of their contentions that error did or did not occur, and each party has an opportunity to present oral legal arguments supporting his position.
Most jurisdictions provide a second appellate court to which a party may appeal from an adverse decision of the first appellate court. The right to such a second appeal is usually limited to certain types of cases raising particularly important issues, and only a small percentage of litigants pursue a second appeal. In the U.S. Supreme Court, a petition to authorize an appeal in certain cases involving the public interest, when it is not available as a matter of right, is known as a petition for a writ of certiorari.
If such a move fails, all legal systems permit a losing party to appeal the adverse judgment to another court. They differ as to which judgments may be appealed and how deeply the appellate court will scrutinize whichever judgments are appealed.
In general, appellate courts in civil-law systems exercise broad supervisory authority over lower court rulings. Appeals to intermediate appellate courts from courts of first instance are available quite broadly in
Europecivil-law systems, frequently for all judgments exceeding a certain amount and at times for certain types of judgments
,regardless of the amount.
This encourages appeals to intermediate appellate courts and explains their frequently very heavy case load.SinceBecause the appeal involves a new hearing of the case, the procedure
is essentially similar to that in use inresembles that used by courts of first instance, though entirely new claims may not be presented. In the case of a review of a nonfinal judgment, the appellate court frequently limits its review to an examination of the legal correctness of that judgment and then remands the case, so that proceedings in the court below may be completed.
Occasionally, appellate courts are authorized to use the occasion of an appeal of a nonfinal judgment in order to decide the entire case themselves.By way of contrast, appeals to theAppeals to the supreme courts of the
variouscivil-law countries generally are
generallylimited to questions of law. The facts are not ordinarily reexamined, and no new evidence may be introduced.
The procedure involves essentially the presentation of written or oral argument by counsel for both sides on the alleged substantive or procedural errors made by the lower court.In several countries (e.g.,
such asFrance and Italy), the
partisan argumentarguments by the parties
ismay be augmented by
independent argument byan officer
ofrepresenting the Ministry of Justice
representing the law as such. The court either affirms or reverses the judgment submitted to it for review. If it reverses, it does not, generally,. If a court reverses a lower court ruling, it generally does not substitute its own judgment for the erroneous judgment below but merely annuls the erroneous judgment and remands the case for new proceedings, frequently to a court different from that from which the case came. Review by supreme courts usually can
usuallybe sought for all final (and sometimes even nonfinal) decisions of intermediate appellate courts
By contrast with civil-law regimes,
and frequently also of decisions of courts of first instance if no appeal to an intermediate appellate court is possible. No special permission of the court analogous to the grant of certiorari is ordinarily required. Consequently, case loads are extremely heavy, and to handle them the full court does not usually sit together but instead is divided into panels. In important matters two or more panels may sit together.common-law appellate courts reverse only if a harmful error (one deemed likely to have affected the judgment) has occurred, and even then only if the appealing party complained about that error to the trial court at the time of its ruling. Common-law appellate courts review errors of law as well as fact but may reverse only if convinced that the lower court's finding of law was erroneous or a finding of fact (whether by judge or jury) was clearly erroneous. Even then the appellate court will still affirm if the trial court reached the correct result. This preference for affirmation is reinforced by the rule that appellate courts in common-law systems consider only the record and transcript of evidence in the trial court and receive no new evidence. Combined with the general rule that only final judgments may be appealed, these rules make it typically more difficult for a losing party to secure appellate reversal in common-law regimes. Most common-law jurisdictions provide a second appellate court to which a party may appeal from an adverse decision of the first appellate court. The right to such a second appeal generally is limited to certain types of cases raising particularly important issues, and only a small percentage of litigants are permitted to pursue a second appeal. In the U.S. Supreme Court, a petition to authorize an appeal is known as a petition for a writ of certiorari.
Appellate courts universally are constituted of several judges. It is frequent practice in Anglo-American countries for judges who disagree with the decision of the majority of the hearing panel to prepare and file dissenting or separate concurring opinions, in which they explain the reasons for their disagreements. In civil-law countries, such dissenting opinions are rarely allowed; indeed, the courts are generally forbidden to disclose the position taken by an individual member.