Civil Procedure
 A Basic Overview

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Con  Volume No: 01 Chapter No: 01  Page i  Table of Contents

 

Volume  1  Civil Procedure Basic Overview  Page 1

California Civil procedure-Attorneys-Condensed Outline

 California Civil procedure-Attorneys-Detailed Outline  

 

Civil Procedure: A Basic Overview

Broadly speaking, civil procedure consists of the rules by which courts conduct civil trials. "Civil trials" concern the judicial resolution of claims by one individual or group against another and is to be distinguished from "criminal trials," in which the state prosecutes an individual for violation of criminal law in the name of the sate or united sates in federal cases.

"Procedure" is to be distinguished from "substantive law" in that substantive law defines the rights and duties of everyday conduct. Substantive law includes contract law, tort law, and so on. For example when dispute arises as to whether there is a contract or torts the dispute generally center around  the elements of contract law and in the case of torts whether the elements of the tort are present. The formal court process by which this dispute is resolved  is governed by the rules of civil procedure.

The rule are governed by statutory code provision . For example the law of civil procedure in California is  provided in ht California Code of Civil Procedure. In addition there are the state court rules that that must be observed and with compliance is mandatory. In addition to the sate wide codes and rule there are generally Local Court Rules, and Local court rules for specific types of cases such as probate and family law  that must be observed.

A procedural system provides the mechanism for applying substantive law to real disputes. A good procedural system should provide guidelines as to what information is received by the judge or jury, how that information is to be presented, and what by standards of proof ("beyond a reasonable doubt," "by clear and convincing evidence," "by a preponderance of the evidence") the information will be adjudged. A good procedural system ensures that similar cases will be treated similarly by the courts.

Although the majority of suits filed in the United States are settled before trial through negotiated settlements or arbitration, "civil procedure" strictly defined applies only in formal courts of law.

Under the American "common law" system, the initial burden is on the complaining party (the "Plaintiff") to file suit in court. The Plaintiff also has the initial burden of demonstrating he or she has a legitimate claim. The rule of civil procedure provisos the mechanism and specifying procedures that will govern the civil suit from the time  of filing, preliminary motions, discovery, pretial proceeding such as settlement conferences, trial, post trial motion, appeal and enforcement of judgment.

In America, civil procedure usually takes the form of a series of rules and judicial practices. The federal courts follow the Federal Rules of Civil Procedure; the state courts follow their own state rules of civil procedure.

In federal courts, evidentiary rules are governed by the Federal Rules of Evidence. The state courts follow their own state rules of evidence.

Administrative Proceedings:  Arbitration and Administrative Proceedings

The the rules in that govern the court proceedings may also govern administrative in totto or with some modification. Some sates have adopted s[specific rule fro administrative procedure; 9orthers have modified them and still other use a combination of both. Each sate must be consulted for the specific state. And the administrative agency it self is a should be consulted.  There are attorneys who specialize in administrative law.

      

Basic Sources of 
Civil Procedure Law

Federal Materia
    United States Constitution
  • United States Constitution
  • Bill of Rights Fifth Amendment-Due Process
    And Right To Remain Silent
  •  
  • Bill of Rights Fourteenth Amendment


    Federal Statutes
    Federal Judicial Decisions and Rules
State Material

    State Statutes
    State Judicial Decisions
    Useful Offnet (or Subscription - $) Sources

Other Topics Dealing with Court Procedure, Remedies, and Alternatives
 

  

  

 

 

Model California Notice of Motion Form

California Practice Guide
CIVIL PROCEDURE BEFORE TRIAL
JUDGE ROBERT 1. WEIL (Ret.) Los Angeles Superior Court
JUDGE IRA A. BROWN, JR. (Ret San Francisco Superior Court
CONTRIBUTING EDITORS
Judge Lucy Kelly McCabe, San Francisco Superior Court 
Judge Judith D. McConnell, San Diego Superior Court 
Justice William F. Rylaarsdam, Calif. Court of Appeal, 4th App. Dist Justice 
John Zebrowski, Calif. Court of Appeal, 2nd App. Dist.
CONTINUING LEGAL FOUCAT10N-PROGRAMS AND PUBLICATIONS
The Rutter Group A WEST GROUP AFFILIATE



Witkin Civil Proicedure

 

Califronia Forms of {Pleading and proctice