Legal practice

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Legal practice is sometimes used to distinguish the body of judicial or administrative precedents, rules, policies, customs, and doctrines from legislative enactments such as statutes and constitutions which might be called "laws" in the strict sense of being commands to the general public, rather than only to a set of parties. [1]

Contents

England from Henry II

Common law forms of pleading: Writs

In the legal practice that emerged in royal courts under Henry II any case had to fit into a narrowly defined form of pleading usually called a "writ". By the time of Henry III the number of such writs had grown to over 500, but even that many did not cover all the possible claims that people sought to make. [2]

The Provisions of Oxford in 1258 forbade the royal clerks to create any new writs. The result of this was that the courts began to adopt "fictions" such as imaginary parties or actors so that the facts of a case could be fit within one of the established forms, and the Writ of Trespass came to become the catchall form for most claims. [3]

Unlike much current practice, the writs of pleading were not court orders granting relief but the summons, prepared by the plaintiff, filed with the court, and served on the respondent.

United States

U.S. Constitution

The non-conflicting parts of the English and American common law and its forms of pleading were explicitly incorporated into the U.S. Constitution.

Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Field Code 1848

By the middle of the 19th century strong resistance developed to the rigidities of the common law forms of pleading brought over from England, whose monarchical forms often conflicted with U.S. republican law that made the people the sovereign.

New York State was the first to adopt a codification of legal forms and procedures, called the Field Code from its principal author, David Dudley Field II. Within a few years, most but not all other states adopted similar codes. One of the reforms made was to unite courts of law and equity. The reforms made it easier to get a case started without loading most of the argument and proof at the outset, and made discovery more important during the course of the case. However, there was opposition to the reforms, [4] and resistance from the legal profession, including judges, that prevented the codes from being implemented as intended.

Federal Rules 1938

Before the Federal Rules of Civil Procedure (FRCP) were enacted in 1938, common law pleading was more formal, traditional, and particular in its phrases and requirements. For example, a plaintiff bringing a trespass suit would have to mention certain key words in his complaint or risk it being dismissed with prejudice. In contrast, the FRCP is based on a legal construction called notice pleading , which is less formal, created and modified by legal experts, and far less technical in requirements. In notice pleading, the same plaintiff bringing suit would not face dismissal for lack of the exact legal term, so long as the claim itself was legally actionable. The policy behind this change is to simply give "notice" of your grievances, and leave the details for later in the case. This acts in the interest of equity by concentrating on the actual law and not the exact construction of pleas.

Thirty-five states have adopted versions of the federal rules as their own procedural code.

In addition to notice pleading, a minority of states (e.g., California) use an intermediate system known as code pleading. Code pleading is an older system than notice pleading and is based on legislative statute. It tends to straddle the gulf between obsolete common-law pleading and modern notice pleading. Code pleading places additional burdens on a party to plead the "ultimate facts" of its case, laying out the party's entire case and the facts or allegations underlying it. Notice pleading, by contrast, simply requires a "short and plain statement" showing only that the pleader is entitled to relief. (FRCP 8(a)(2)). One important exception to this rule is that when a party alleges fraud, that party must plead the facts of the alleged fraud with particularity. (FRCP 9(b)).

There has been some controversy over whether the FCRP violate the Eighth Amendment requirement of common law rules, but the usual answer has been that the changes are only in form and not in substance.

See also

Related Research Articles

Common law Law created by judges

In law, common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjudicated in the action.

Equity (law) Set of legal principles supplementing but distinct from the Common Law

In jurisdictions following the English common law system, equity is the body of law which was developed in the English Court of Chancery and which is now administered concurrently with the common law.

A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment is in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying "So what?" to the pleading.

Interpleader is a civil procedure device that allows a plaintiff or a defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. An interpleader action originates when the plaintiff holds property on behalf of another, but does not know to whom the property should be transferred. It is often used to resolve disputes arising under insurance contracts.

Discovery (law) Pre-trial procedure in common law countries for obtaining evidence

Discovery, in the law of common law jurisdictions, is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.

Judicature Acts United Kingdom legislation

The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875, with a further series of amending acts.

The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery which would set in motion a series of events eventually leading to a trial in one of the medieval common law courts. Each writ entailed a different set of procedures and remedies which together amounted to the "form of action".

In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant and second that the defendant refused to return the chattel once demanded by the claimant.

Assumpsit, or more fully, action in assumpsit, was a form of action at common law used to enforce what are now called obligations arising in tort and contract; and in some common law jurisdictions, unjust enrichment.

The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has seven months to veto the rules promulgated or they become part of the FRCP. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body.

In a court of law, a party's claim is a counterclaim if one party asserts claims in response to the claims of another. In other words, if a plaintiff initiates a lawsuit and a defendant responds to the lawsuit with claims of his or her own against the plaintiff, the defendant’s claims are “counterclaims.”

The Private Securities Litigation Reform Act of 1995, Pub.L. 104–67 (text)(pdf), 109 Stat. 737 ("PSLRA") implemented several substantive changes in the United States, affecting certain cases brought under the federal securities laws, including changes related to pleading, discovery, liability, class representation, and awards fees and expenses.

A cause of action, in law, is a set of facts sufficient to justify suing to obtain money, property, or the enforcement of a legal right against another party. The term also refers to the legal theory upon which a plaintiff brings suit. The legal document which carries a claim is often called a 'statement of claim' in English law, or a 'complaint' in U.S. federal practice and in many U.S. states. It can be any communication notifying the party to whom it is addressed of an alleged fault which resulted in damages, often expressed in amount of money the receiving party should pay/reimburse.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), was a decision of the Supreme Court of the United States involving antitrust law and civil procedure. Authored by Justice David Souter, it established that parallel conduct, absent evidence of agreement, is insufficient to sustain an antitrust action under Section 1 of the Sherman Act. It also heightened the pleading requirement for federal civil cases by requiring for plaintiffs to include enough facts in their complaint to make it plausible, not merely possible or conceivable, that they will be able to prove facts to support their claims. The latter change in the law has been met with a great deal of controversy in legal circles, as evidenced by the dissenting opinion from Justice John Paul Stevens.

Civil procedure in the United States consists of rules that govern civil actions in the federal, state, and territorial court systems, and is distinct from the rules that govern criminal actions. Like much of American law, civil procedure is not reserved to the federal government in its Constitution. As a result, each state is free to operate its own system of civil procedure independent of her sister states and the federal court system.

Civil discovery under United States federal law is wide-ranging and can involve any material which is relevant to the case except information which is privileged, information which is the work product of the opposing party, or certain kinds of expert opinions. Electronic discovery or "e-discovery" is used when the material is stored on electronic media.

Law of the United States Overview of United States law

The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, which prescribes the foundation of the federal government of the United States, as well as various civil liberties. The Constitution sets out the boundaries of federal law, which consists of Acts of Congress, treaties ratified by the Senate, regulations promulgated by the executive branch, and case law originating from the federal judiciary. The United States Code is the official compilation and codification of general and permanent federal statutory law.

Pleading in United States Federal courts is governed by the Federal Rules of Civil Procedure.

References

  1. ↑ Anastasoff v. United States, 223 F.3d 898, 903 (8th Cir. 2000). Discussed in "Precedent and Judicial Power after the Founding", Polly J. Price, Bostom College L.R., Vol. 42 No. 1, Dec. 2000, pg. 81-122.
  2. ↑ Charles Rembar, The Law of the Land: The Evolution of Our Legal System, New York: Simon & Schuster, 1980. Pp. 172ff. ISBN   0-06-097219-X
  3. ↑ Rembar, Law of the Land, p. 203.
  4. ↑ Is Codification of the Law Expedient?, by William B. Hornblower. Address delivered before the American Social Science Association (Department of Jurisprudence) at Saratoga, N.Y., September 6, 1888. Link
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