When I started law school I was required to buy a lot of books.  Two of them were books titled Civil Procedure and something like West’s Court Rules. The Civil Procedure book was a case book, and the Court Rules was a compendium of rules. I was also given a reading assignment for both books. Now let it be known that before that moment I had never thought about civil trial court procedure or the Federal Rules of Civil Procedure (FRCP), nor did I have a burning interest in such. Nevertheless I was expected to step-by-step learn how the FRCP worked and how to use them over the next year. But at the beginning I knew nothing about the subject. That was to change, but don’t feel bad if this is a subject that is alien to you.

As I worked through the rules over the next nine months it became obvious to me that lawyers love procedure problems. My years in practice have confirmed this. Often it is easier for a litigator to argue about some obscure–at least to a layman–procedural problem than it is to argue about the facts or substantive law. Getting back to law school, though, one purpose of the civil procedure class was to instill this love of procedure in the students. And, at least in my case, it worked. Procedural arguments can be fun, even if a non-lawyer finds most of them to be opaque. I suppose that is part of what keeps lawyers in business; this knowledge of a special language.

My thoughts should not, however, be used to denigrate the need for procedural rules, even if lawyers like to argue about them. Procedure plays an important role in securing the due process the Constitution requires. Rules have to guarantee fundamental fairness in a court proceeding. The problem is that as you work through and with court procedures, things can become quite complex.

That was the problem faced by the drafters of the FRCP in the 1930s. Formalism in procedure had become so dominant that it had overwhelmed the search for truth and justice. Lawyers spent long periods nitpicking pleadings rather than finding and presenting facts, and trials were ambushes because there was no pretrial discovery and arguing about pleadings was a poor substitute. The drafters sought to change this with the FRCP.

The FRCP were revolutionary in that they tried to stop the gamesmanship then associated with starting a case . FRCP 8 illustrates this point:
(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.
FRCP 12 allows for simplified motions to attack another party’s pleading. The motion to dismiss, which I talked about in my previous post, faces an uphill battle, though, because FRCP 8 makes it relatively easy to state a case. This remains true, although two US Supreme Court cases make pleading a claim somewhat more difficult than it was in the past. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Another revolution in the FRCP was the free and open use of discovery so that an opponent could find information from other parties to support its case. I will talk more about discovery in an upcoming post. Other rules, which I will discuss later, provide for summary judgment and trial.

Rules like the FRCP have been adopted at the state level so that state litigation is similar to litigation in federal court. But although the rules have been adopted to simplify litigation, lawyers, being lawyers. have added layers of case interpretations on the rules. Ashcroft and Twombly illustrate this process. Nevertheless, no one can deny that the FRCP revolutionized litigation in the US, and they will keep evolving as lawyers work to bend them to their client’s interests. In that process it is up to judges to remember the admonition in FRCP1 that the rules ” should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

About Foundation In Law

Foundation In Law

Over a long career as a practicing attorney, Frank Hammond came to realize many prospective legal clients do not know much about lawyering and lawyers – how they work, how fees are set, and how to deal with them. Beginning attorneys also often have little notion of what actual practice involves. This blog is meant to be a guide for both.

Disclaimer: The Foundation in Law blog is not intended to provide legal advice, and no attorney-client relationship will arise as a result of interacting with this blog. You are advised to consult with your own attorney regarding legal questions. The opinions expressed in this blog are those of the author alone. The author is licensed only to practice in the State of Oregon.