Civil procedure in the United States

Civil procedure in the United States consists of the rules of civil procedure that govern procedure in the federal courts, the 50 state court systems, and in the territorial courts. Like much of American law, civil procedure is not reserved to the federal government in the 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.

History

Early federal and state civil procedure in the United States was rather ad hoc and was based on traditional common law procedure but with much local variety. There were varying rules that governed different types of civil cases such as "actions" at law or "suits" in equity or in admiralty; these differences grew from the history of "law" and "equity" as separate court systems in English law. Even worse, discovery was generally unavailable in actions at law. In order to obtain discovery, a party to a legal action had to bring a collateral proceeding, a bill in equity in aid of discovery, just to obtain essential documents or testimony from the opposing party.

Procedure in the early federal courts was rather incoherent. The Process Act of 1792 authorized the federal courts to write their own procedural rules for everything but actions at law. In the context of actions at law, the Process Act of 1789 was so poorly written that it forced a federal court sitting in a state to apply the common law rules of pleading and procedure that were in effect in the state at the time it joined the Union, regardless of whether the state had modified or revised its civil procedure system since. In other words, even though a state's common law pleading system was always constantly evolving through case law, the federal courts in that state were literally frozen in time. The Process Act did not speak to the problem of what law to apply in new states that joined the Union after the original Thirteen Colonies. In 1828, Congress enacted a law which stated that federal courts in new states would follow the civil procedure in effect at the time those states joined the Union.

Unfortunately for the federal courts, state civil procedure law began to diverge dramatically in the mid-19th century. In the 1840s, the law reformer David Dudley Field II launched a movement away from common law pleading and towards what came to be called "code pleading." Common law pleading operated under ad hoc procedures that developed haphazardly through case law. In other words, a particular procedure was followed just because some (often ancient) decision said so, but none of those decisions were looking at the "big picture" to see if the entire procedural system made sense. In contrast, code pleading was carefully designed, at least in theory, with the entire lifecycle of a case in mind so that it would be simple, elegant, and logical, and was implemented by the enacting of a "code of civil procedure" by the state legislature. Eventually, 24 states enacted versions of the Field Code in part or in whole.

By the late 19th century, lawyers were becoming very frustrated with having to follow procedures that had been obsolete in their states for decades every time they litigated actions at law in federal courts. In response, Congress finally enacted the Conformity Act of 1872, which directed federal courts to conform their procedure in such actions to the current practice in the states in which they were sitting. Federal courts were allowed to continue to develop the federal common law of evidence (most of which was replaced a century later by the Federal Rules of Evidence).

However, allowing federal courts to conform to current state procedure still did not solve the federal courts' problems with actions at law, because by the turn of the 20th century, the U.S. was a mix of common law and code procedure states. Even worse, many code procedure states had merged law and equity procedure into a unified civil procedure system, which directly clashed with the federal courts' preservation of the traditional English division between the two bodies of procedural law. The inevitable result was confusion and chaos in the federal courts, particularly as interstate commerce escalated with the Second Industrial Revolution and an increasing number of cases between citizens of different states were heard in federal courts under diversity jurisdiction.

Frustration with the status quo caused the American Bar Association to launch a nationwide movement for reform of federal civil procedure in 1911. After years of bitter infighting within the American bench and bar,^[8] the federal procedural reform movement culminated in the enactment of the Rules Enabling Act on June 19, 1934.

 The Supreme Court at first took little interest in exercising the new powers granted to the Court by the Act. Then in January 1935, Charles Edward Clark, the dean of Yale Law School, published an article arguing that federal procedural reform had to include a full merger of law and equity, as had occurred in many code procedure states. This article in turn inspired U.S. Attorney General William D. Mitchell to write a letter to Chief Justice Charles Evans Hughes in favor of procedural reform. The Supreme Court appointed an Advisory Committee to draft what would become the Federal Rules of Civil Procedure on June 3, 1935. Mitchell was appointed as the Advisory Committee's first chairman (a position he would hold until his death in 1955) and Clark was appointed as the Committee's Reporter. The Advisory Committee's initial membership in 1935 included several prominent lawyers and politicians of the era, including George W. Wickersham, Armistead Mason Dobie, George Donworth, and Scott Loftin. Other prominent persons who were appointed later to the Advisory Committee included George W. Pepper, Samuel Marion Driver, and Maynard Pirsig.

The Advisory Committee first prepared two preliminary drafts for its own use, then eventually printed and circulated three drafts nationwide, in May 1936, April 1937, and November 1937. The third report was the final one, which the U.S. Supreme Court reviewed, revised, and adopted on December 20, 1937. There was significant opposition to the new rules in Congress and hearings were held by both House and Senate committees, but the Rules Enabling Act required Congress to affirmatively override the Supreme Court's adoption of rules pursuant to the Act. Congress recessed in June 1938 with neither house having taken a floor vote on the issue, and accordingly, the Federal Rules of Civil Procedure automatically went into effect on September 16, 1938. The Rules unified law and equity and replaced common law and code pleading with a uniform system of modern notice pleading in all federal courts. There are exceptions to the types of cases that the FRCP now control but they are few in number and somewhat esoteric (e.g., "prize proceedings in admiralty").

The FRCP drafters were heavily influenced by the elegance of civil procedure in certain code pleading states, particularly California and Minnesota. However, the FRCP went to a new system now called "notice pleading," based on the idea that a complaint should merely give "notice" that the defendant is being sued, and allow the plaintiff to use the machinery of the courts to compel discovery of evidence from the defendant which would help the plaintiff prove his case. And of course, the defendant could compel discovery of evidence from the plaintiff to support his defenses. The FRCP also introduced a number of innovations such as Rule 16 pretrial conferences, which gave judges a method for managing caseloads more aggressively and urging parties to reach settlements.

Having completed its initial task, the Advisory Committee survived for almost twenty years. In 1941, 1946, and 1948, the Supreme Court adopted the Committee's proposed revisions to the FRCP, but for reasons that were never disclosed, the Supreme Court never adopted the Committee's 1955 revisions, and discharged the Committee instead on October 1, 1956.

The ABA and numerous other groups lobbied for some kind of committee to take over the task of maintaining the FRCP and other federal procedural rules. In 1958, Congress amended the act creating the Judicial Conference of the United States so that it would have the power to advise the Supreme Court about revisions to procedural rules. The judicial Conference then appointed a Standing Committee to handle that task, which in turn appointed an advisory committee for each set of federal procedural rules, including the FRCP. Thus, since 1958, the Advisory Committee on Civil Rules has been in charge of drafting revisions to the FRCP.