Clermont Civ_Pro_Outl - CIVIL PROCEDURE PART ONE GENERAL...

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CIVIL PROCEDURE PART ONE: GENERAL CONSIDERATIONS I. CIVIL PROCEDURE SYNTHESIZED A. Nature of Civil Procedure Nature of Civil Controversies: Civil procedure concerns the society's noncriminal process for submitting and resolving factual and legal disputes over the rights and duties recognized by substantive law, which rights and duties concern primary conduct in the private and public life that transpires essentially outside the courthouse or other forum. Disputes involve 1) different interpretations of the substantive law, 2) disputes as to what happened, and 3) disputes over both substantive law and facts. Nature of Procedural Rules: In shaping this law of civil procedure, the shapers constitutions, legislatures, courts, and litigants observe both outcome and process values. The government prescribes how people can bring controversies to court through: 1. Federal and State Constitutions e.g. Seventh Amendment guarantee of trial by jury 2. Statutes enacted by legislatures 3. General Rules promulgated by courts 4. Specific rulings of the courts having the force of precedent. Some of the aims of the Rules of Civil Procedure: 1. Be efficient but fair, 2. Disclose the dispute in the minimum time and with the least expense, 3. Confine the parties to the presentation of materials relevant to the real dispute and helpful in its resolution, 4. To give neither side undeserved forensic advantage. The Substance-Procedure Distinction: Substantive law is : The body of enforceable rights and duties that concern primary conduct in the private and public life transpiring essentially outside the courthouse or other forum. Procedural law is : Societal process for submitting and resolving factual and legal disputes over the rights and duties recognized by substantive law. See discussion of Sibbach below. For further discussion, see pp. 48-50 B. Content of Civil Procedure Page 1 of 87
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Turbulent policies and misleadingly concrete rules constitute the law of civil procedure. One underlying theme is that our society has generally opted to dispense justice by adjudication involving an adversary system wherein the parties are represented by advocates . That is, the judges are supposed to be passive acting as umpires and representing disinterested society. The parties are supposed to formulate and propel the case forward. This is not a perfect system. For further discussion, see pp. 50-51 C. History of Civil Procedure 1. English Roots The old English system had two distinct sets of courts, procedure, remedies, and substantive law. a. Common Law : Jury. Two types of relief: money damages and recovery of possession. b. Equity : No Jury. Relief : An order to do or not do something according to substantive law. For further discussion, see pp. 51-55 2. State Developments The American states basically followed the English model until the code reforms of the 19th century, beginning with the Field Code in 1848. The Field Code merged law and equity and abolished the forms of action. Simplified procedure and provided for legal and equitable remedies and substantive law.
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