The Basics of Law, required to defend your Rights in debt collection cases

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The goal of those who come here is:

1) to be able to successfully defend your Rights
in Court, while being opposed by a hostile attorney.

2) It is for those who do not panic,
have a character, and, only need some knowledge
of the procedures in Court.

3) We should and must win; so,
let's get what is missing:
the basic knowledge.

4) As an example, a State of New York would be used whenever possible.
You apply the same technique for your State;
just check its laws.

We would begin with:

Civil Procedure
Federal Rules of Civil Procedure
Civil Procedure Rules 1998
Doctrines of civil procedure
Jurisdiction
Subject matter jurisdiction
Personal jurisdiction
Proper venue
Change of venue
Forum non conveniens
Removal
Pleadings and motions
Service of process
Complaint
Cause of action
Class action
Class Action Fairness Act of 2005
Demurrer
Answer
Affirmative defense
Reply
Counterclaim
Cross-claim
Joinder
Interpleader
Pre-trial procedure
Discovery
Interrogatories
Depositions
Resolution Without Trial
Default judgment
Summary judgment
Voluntary dismissal
Involuntary dismissal
Settlement
Trial
Parties
Plaintiff
Defendant
Jury
Voir dire
Burden of proof
Judgment
Judgment as a matter of law (JMOL)
Renewed JMOL (JNOV)
Motion to set aside judgment
New trial
Remedy
Injunction
Damages
Attorneys' fees
American rule
English rule
Declaratory judgment
Appeal
Mandamus
Certiorari

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Related Topics
Procedural law
federal courts
relief
equity
pleading
discovery
pretrial conference
trial
civil action
plaintiff


Civil Procedure

The methods, procedures, and practices used in civil cases.

The judicial system is essentially divided into two types of cases:

civil

and

criminal.

A study of civil procedure is a study of the procedures that apply in cases that are not criminal.

Generally, criminal trials are used by the government to protect and provide relief to the general public by attempting to punish an individual. Civil trials can be used by anyone to enforce, redress, or protect their legal rights through court orders and monetary awards. The two types of trials are very different in character and thus have separate procedural rules and practices.

Procedural law is distinguished from substantive law, which creates, defines, and regulates the rights and duties of individuals.

Federal and state constitutions, statutes, and judicial decisions form the basis for substantive civil law on matters such as contracts, torts, and probate. Procedural law prescribes the methods by which individuals may enforce substantive laws. The basic concern of procedural law is the fair, orderly, efficient, and predictable application of substantive laws. Procedural guidance can be found in court-approved rules, in statutes, and in judicial decisions.

Federal Rules

of Civil Procedure \ State and federal courts maintain separate procedural rules. On the federal level, the Federal Rules of Civil Procedure govern the process of civil litigation in U.S. district courts, which are trial courts. At least one U.S. district court operates in each state. Each district court also exists within one of thirteen federal circuits. Any appeals of decisions by a U.S. district court are heard by the court of appeals for the federal circuit in which the district court sits. Appeals of decisions by a U.S. court of appeals may be heard by the Supreme Court of the United States.

The Supreme Court and the courts of appeals use procedures contained in the Federal Rules of Appellate Procedure and in the U.S. Supreme Court Rules.

As reviewing courts, they are concerned with the district courts' application of the Federal Rules of Civil Procedure.

The Federal Rules of Civil Procedure are now contained in title 28 of the U.S. Code.

Before 1938, the procedural rules in U.S. district courts varied from circuit to circuit. The rules in the western United States, for example, were generally less complex than those in the East. To add to the confusion, federal civil cases were designated either at law, which essentially meant that the relief sought was monetary, or equitable, which meant that the court was asked to act on principles of fairness and, generally, to award nonmonetary relief. The distinction was important because the procedural rules for a case at law differed from those for an equity suit.

In response to widespread criticism of procedural complexity, the U.S. Congress in 1934 passed the Federal Rules Enabling Act (28 U.S.C.A. §§ 2071, 2072). This act conferred on the Supreme Court the power to make new rules for federal courts. In 1938, new rules were recommended by an advisory committee appointed by the Supreme Court and approved by Congress. The new rules featured simplified pleading requirements, comprehensive discovery procedures, a pretrial conference to narrow the scope of a trial and define issues, and broad provisions for joining parties and claims to a lawsuit. In addition, legal and equitable claims were merged to proceed with the same set of rules.

The first set of uniform federal rules was not perfect.

As time passed, it became clear that continuous oversight of the rules was necessary to ensure their improvement.

In 1958, Congress created the Judicial Conference of the United States, a freestanding body to study federal civil procedure and propose amendments to the Supreme Court. The Judicial Conference, in turn, created the ongoing Committee on Rules of Practice and Procedure to help fashion the best procedural rules for federal courts.

Amendments to the Federal Rules of Civil Procedure now occur on a regular basis.

State courts generally follow the same judicial hierarchy as federal courts.

In all states, a party to a civil suit is entitled to at least one review of a trial court decision. In some states, a party may be entitled to two appeals: one in a court of appeals, and one in the state supreme court.

Procedural rules in state courts are similar to the federal rules. Indeed, many states base their procedural rules on the federal rules. Thus, there is a large measure of uniformity among the states, and among state and federal courts.

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Litigation Process

A civil action is commenced with the filing of a complaint.

The plaintiff must file the complaint with the court, and must give a summons to the court and a copy of the complaint to the defendant. The complaint must set forth the claims and the legal bases for them.

Before filing the complaint, the plaintiff must decide where to file it.

As a general rule, cases are filed in state, not federal, courts.

The question of whether a particular court has authority over a certain matter and certain parties is one of jurisdiction.

Federal courts generally have jurisdiction over civil actions in three situations.

1) The most common is when the parties to the suit live in different states and the amount of money in controversy exceeds $50,000.

2) The second instance is when a claim is specifically authorized by federal statute.

3) The third is when a claim is made by or against the federal government or its agents.

The jurisdiction of state courts depends on a number of variables. Plaintiffs filing in state court generally prefer to file in their home state. However, this may be difficult in a case where the defendant lives in another state and the injury occurred outside the plaintiff's home state.

A court in the plaintiff's home state can gain jurisdiction over an out-of-state defendant in several ways.

For example, if the defendant enters the plaintiff's home state, the plaintiff may serve the defendant there and force the defendant to appear there for trial. Or the plaintiff can show the court that the defendant has some minimal amount of contact with the plaintiff's home state. Or the plaintiff can show that the defendant has property in the plaintiff's home state and the property is the subject matter of the dispute.

In addition to jurisdiction, the plaintiff must also consider venue.

Venue is the term describing the particular county, or geographical area, in which a court with jurisdiction may hear and determine a case.


The plaintiff makes a decision on venue after deciding whether to file suit in state or federal court. For example, if a plaintiff decides to file suit in state court, and has settled on a particular state, the plaintiff must decide in which county to file suit. The overriding consideration in determining the best venue in a case is the convenience to the parties.

Once the plaintiff determines where to file the complaint, the plaintiff must prepare pleadings and motions.

Pleadings are the plaintiff's initial allegations and the defendant's responses to those allegations.


Motions are requests made by the parties for a specific order by the court. Courts usually schedule pretrial conferences to review and rule on pleadings and motions, sort out preliminary issues, and prepare a case for trial.

Before a case can proceed, the court must determine whether the plaintiff has standing to bring the suit.

In order to hear the suit the court must find that the plaintiff has some legally protectible, tangible interest in the outcome of the litigation. Other plaintiffs may join the original plaintiff if they seek the same relief concerning the same transaction or event and the complaints involve a common question of law or fact.
This is called joinder.

In some cases, joinder may be compulsory.

Under Rule 19, a person must be joined if (1) complete relief cannot be accorded to the parties without joining the missing person or (2) the missing person claims an interest in the action, and absence from the suit will impair that person's ability to protect the interest, or absence would subject the parties to multiple or inconsistent obligations regarding the matter of the suit.

Both plaintiffs and defendants may be ordered by the court to join a suit.

The court must also determine before trial that the issues in the case are justiciable. This means that the case must be ready and proper for a judicial determination. Courts do not hear hypothetical, abstract, or political cases. For example, a person may not file a suit against a legislator over the legislator's vote on a matter before the legislature. Nor may a person file a suit against another unless she can demonstrate that the other has caused her some injury or harm.

If the complaint does not state a claim upon which judicial relief can be granted, the defendant may move for summary judgment.

This is a request that the court issue a final judgment on the case in favor of the defendant.

The plaintiff also may submit a motion for summary judgment, either soon after filing the complaint or after the defendant submits a summary judgment motion.

When deciding a motion for summary judgment, the court must consider the pleadings in the light most favorable to the party opposing the motion.

The parties to a lawsuit prepare their case based on information gained through the process of discovery.

Discovery consists of a variety of methods including

a) depositions
and
b) interrogatories.

A deposition is an interview of a party or witness conducted by a lawyer.

Usually, this interview is conducted orally with a lawyer for the other side present and able to participate; sometimes, it is conducted using written questions. Information about a party may be secured through written interrogatories or requests to produce documents or things.
These requests may be served only upon a party. A request for production may seek any item within a party's control.

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Procedural rules on depositions and other forms of discovery address a number of concerns, including how a deposition is conducted, the permissible scope of a deposition, who may conduct a deposition, when a party may object to a question at a deposition, when a party may object to an interrogatory, when a party may enter upon land for inspection, when a party may make physical or mental inspections of another party, and what happens when a party does not cooperate with a court order directing compliance with discovery.

If the parties cannot reach a settlement, the case will go to trial.


Just before trial, the plaintiff must decide whether to ask for a jury trial.
Not all civil cases may be tried before a jury.

The right to a jury trial is usually tied to the amount of money at issue: if the case concerns less than a certain amount, such as $10,000, the case may be limited to trial before a judge. In federal court, however, all parties have the right to a jury trial. If a plaintiff or defendant is granted a jury trial, both sides will have the opportunity to screen potential jurors for bias.

At trial, each side is given the opportunity to make an opening statement to the fact finder, be it judge or jury.

The plaintiff then presents evidence. Evidence can include testimony from witnesses and tangible items presented through witnesses. When the plaintiff has presented her or his case, the defendant has the option of presenting evidence. After the defendant presents evidence, the parties make closing arguments to the fact finder.

After final arguments, the judge must determine what laws apply to the case.

Both parties submit proposed instructions to the judge. If the case is tried before a jury, the judge must read instructions to the jury.

If the case is tried before a judge, the judge will give the parties an opportunity to argue that certain favorable law controls the case.

At this point, either party may move the court for a directed verdict.

This is a request that the court decide in the party's favor before deliberating on the case or sending it to the jury.

A directed verdict may be granted only if no substantial evidence supports a finding in the opposing party's favor and the opposing party bears the burden of producing evidence on the issue.

If the judge does not issue a directed verdict, the fact finder retires to deliberate the case in secret.

The final phase of the trial is judgment. The court has the option of requesting different types of verdicts.

If it requests a general verdict, it is looking for a flat finding of liability or no liability.

If it requests a special verdict, it expects the fact finder to answer specific factual questions, and then the judge determines the legal consequences of the answers.

In a complex jury trial, the court may request that the jury deliver a general verdict along with answers to special interrogatories.

This form of verdict allows the judge to ensure that the jury delivers the correct verdict based on its factual findings.

The number of jurors on a civil jury can be as few as five or as many as twelve, depending on the jurisdiction. In most jurisdictions, including federal courts, the jury's decision must be unanimous,

but some jurisdictions allow a verdict with something less than unanimity, such as an agreement among nine of twelve jurors.

If the defendant has failed to appear for the proceedings, judgment will be entered for the plaintiff.

However, in this situation, the defendant may contest the judgment when the plaintiff attempts to collect on it, by filing a separate suit and challenging the jurisdiction of the court.

When the verdict is delivered, the losing party may seek a reversal of the judgment.

Sometimes a verdict is unsatisfactory to both parties, and both parties seek a reversal; this might happen, for example, when one party wins the lawsuit but receives a small damages award. Reversal of a verdict may be pursued through a motion for judgment notwithstanding the verdict, or JNOV
(for judgment non obstante veredicto, which is Latin for "notwithstanding the verdict").

The standard for this order is the same as that for a directed verdict.

A reversal of judgment usually occurs only in jury trials; judges generally are not inclined to reverse their own decisions.

A court may grant a new trial if procedural problems at trial prejudiced a party or worked against the interests of a party, and affected the verdict.

Such problems include juror misconduct and unfair withholding of evidence by an opposing party. A new trial may also be granted if the damages authorized by the jury were excessive or inadequate.

In extreme cases, a new trial may be granted if newly discovered evidence comes to light after the case is given to the jury.

All jurisdictions give parties to a civil suit the right to at least one appeal.

A decision may be reversed if an error at trial prejudiced the appellant (the party bringing the appeal).

The Key:

Instead, they limit their review of cases to mistakes of law.


This is a nebulous concept, but generally it refers to mistakes relating to procedural and constitutional violations.

Sometimes a party may appeal a court order or decision to a higher court during trial.

Known as an interlocutory appeal, this option is limited.

A party may appeal during trial if the party stands to suffer irreparable harm if the order or decision is not immediately reviewed.

A party may also appeal an order or decision during trial if it affects a matter that is collateral to, or separate from, the litigation.

Some parties come to court seeking provisional remedies, which are forms of temporary relief available in urgent situations.

Temporary restraining orders and injunctions are court orders that direct a party to perform a certain act or refrain from performing a certain act.



For example, if a party wants to bring suit to prevent the imminent demolition of what he believes is a historic building, he may petition the court for a temporary restraining order to prevent demolition while the suit is filed.

A temporary restraining order will last up to ten days.

When the ten days have expired, the litigant may seek either renewal of the temporary restraining order or a preliminary injunction.

A preliminary injunction, if granted, requires a party to perform an act or refrain from performing an act until the end of trial.

A permanent injunction is a court order that requires a defendant to perform an act or refrain from performing an act permanently.

After a judgment is reached, the winning party must enforce it.

If the losing party does not voluntarily relinquish the disputed property or pay the monetary judgment, the winning party may seize and sell the property of the losing party.

This is accomplished by filing the judgment in the county where the property is located and proceeding to obtain ownership of the property through another civil suit.

If the losing party has no money, the winning party may seek to garnish a portion of the losing party's wages.

If the losing party does not work and has no property, the winning party may be unable to collect on the judgment.

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Civil Justice Act of 1990

Civil cases often are expensive and time-consuming.

In August 1990, the U.S. Congress passed
the Civil Justice Act of 1990 to help remedy these problems (28 U.S.C.A. §§ 471-482).

The U.S. Senate explained that the Civil Justice Act was "to promote for all citizens, rich or poor, individual or corporation, plaintiff or defendant, the just, speedy and inexpensive resolution of civil disputes in our Nation's federal courts" (S. Rep. No. 101-416, 101 Cong., 2d Sess., at 1 [Aug. 3, 1990]).

The act ordered each U.S. district court to implement a Civil Justice Expense and Delay Reduction Plan under the direction of an advisory group comprising "those who must live with the civil justice system on a regular basis" (S. Rep. No. 101-416, at 414 [quoting statement of Senate Judiciary Committee chairman Biden, Cong. Rec. S416 (Jan. 25, 1990)]).

The advisory groups in each federal district were appointed by the chief judge of the federal circuit, and they generally consisted of judges, clerks, and law professors. These experts prepared a report on methods for reducing expense and delay in civil litigation.

The report was then considered by the federal circuit court judges in forming the Civil Justice Expense and Delay Reduction Plan.


One major challenge that faced the advisory groups was how to get courts to best use modern technology.

Since passage of the act, many federal circuits have authorized the filing of court documents by

facsimile and other electronic means, which may include the use of computers.

Federal courts have also acted to improve scheduling.

The U.S. District Court for the District of New Hampshire, for example, created four separate categories for scheduling civil cases:

administrative,

expedited ("rocket docket"),

standard,

and complex.

The determination of a case's category is made at the preliminary pretrial conference.

Most cases fall into the standard category,

which means a trial will be held within one year of the preliminary pretrial conference.


A rocket docket case can be tried within six months of the preliminary pretrial conference, if the parties agree and the

trial will last no more than five days.

Administrative and complex cases are scheduled with special attention.

By identifying the length and complexity of a case at the preliminary pretrial conference, federal circuit courts are able to minimize unnecessary delays.

In all jurisdictions, preliminary pretrial conferences have become important in civil litigation.

The court, after consulting the parties, schedules and holds this conference within a certain amount of time after the filing of the complaint.

At this conference, the court attempts to resolve all the issues that can be resolved outside of trial. These issues include the control and scheduling of discovery, the admissibility of evidence, the possibility of separate trials, and orders limiting the length of the trial presentation.

To reach, or decide, substantive issues more quickly, many federal courts ask litigants to file any motions for summary judgment or motions to dismiss before the preliminary pretrial conference.

[mrg]

How is charging of FEE in order to litigate inicative of FREE access to remedy in a court of Law?

What is the operative part of the term Freedom?

From whence does Freedom derive?

Do we have Freedom, or that from which Freedom derives?

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Originally Posted by mrg

How is charging of FEE in order to litigate inicative of FREE access to remedy in a court of Law?

What is the operative part of the term Freedom?

From whence does Freedom derive?

Do we have Freedom, or that from which Freedom derives?

How are dear Mrg and all Sovereigns?

Presenting correct questions are
a considerable step toward solving problems.

Beautiful questions, indeed.

How is charging of FEE in order to litigate inicative of FREE access to remedy in a court of Law?

I would answer semi-esoterically; yet, straight to the point.

As, by law of the jungle, the weakest
is at the bottom of the food chain, so are the "poor"
or those who may not be able to afford seeking justice
in Courts.

The US has installed the, so called, legal system
based on absolutely "illegal" concept of justice according
to what you can afford to pay for it!


"Justice and according" already imply corruption.

True Justice is derived only out
of the True Principles and most of them are in
the Ten Commandments,
which has nothing to do with religion.


It has to do with common sense and Universal fairness.

Having stated that, we must add that "the very poor"
can file as an indigent individual; thus, fees are waved.



However, those who qualify for the indigent status,
almost never present any threat to the Establishment,
as the former are naive and uneducated.
What can such accomplish?


The ranks of just below the middle class or the middle class
possess danger to the Elite; therefore, the system
of derailing such and wasting as much monies and,
particularly, time (as time is money too) has been
implemented.


Enlightened people are a nightmare to the Elite
and a threat No One, as even one Enlightened leader may
ignite masses.

So can one talented tyrant.
Examples" Hitler and Stalin.

On the other side: Jesus Christ and Buddha.

Of course, there have been others from both sides.


I only refer to the people as they were
real flesh and bones on Earth,
without venturing into religious aspects.


Courts are buffer zones for the Elite's immunity as far as the latter can ride the "elephant."


Then, we have a "rhinoceros" in the form of Congress,
where too many politicians are siting there
to protect the interests of those who put them there.


"The wild zoo" is cemented by a "hippo"
- big, fat banking and insurance industry,

When 1) an elephant, 2) rhino, and
3) hippo unite and stand
before the narrow bank of river, no one can cross it
or drink from it unless manages to take quick sips,
while the huge three are resting.


No pack of hyenas, no leopards or a herd of buffaloes
can move the powerful three.

Who can, then?


Only the united prides of lions who instead of their rivalry would join
into one omni-powerful pride, with males,
in their prime, moving forward in numerous formations.

Such unity can repel any standoff
of the mighty three.


Lions have the innate courage and ability
to attack to death only guided by
the desire to win, no matter what.


When People awaken and become Sovereign,
at least in their mind, they do become such lions.

Few of them may not be enough, but many "lions:"
courageous and determined to get to the "river"
and drive the mighty three:
elephant, rhino, and hippo away,
would accomplish their task as, no mater
how big the three are, they have a much
softer underbelly, which lions, once manage to get under, can rip opened.

Then, the giants would bleed to death or realize
that must retreat in order to preserve their life.

Knowledge and virtues - do equip the Sovereigns
with "the claws and canines" necessary to rip any
underbelly of any beast or the alliance
of the mighty three.


Meanwhile the courts are that elephant standing before non-lawyer representations.

Even a simplest case may be litigated
for quite some time.

What kind of working man/women has such luxury?

So, what's left?
Oops, .....once again, lawyers win.

Yes, the scam is set up in such way as to feed
lawyers and judges, as well as those who benefit
from People's ignorance and dependency.
Why are they fed so well?

Because they protect the Elite, being a part
of that Elite.


One hand washes the other.




The People originally, did all they could,
to be Free of tyranny, the British Crown,
and lawyers, and look where all are:
at the grip of lawyers and bankers who control
even that Crown to some extend.

Tell me what do they not control?

It's all by design.


Let's look just at the bail system alone in cases
of arraignments.

Those who can afford their bail are free till the trial.

Those who cannot afford such, are forced to rot
in a slammer before get a chance to have their
case heard.

What kind of justice is that?

It is all about who has more FR.

I can predict that some folks who read our posts,
would put a claim that we are extremists,
right wings, the supremacists,
and all that bull and cow.

On the contrary, we are the People and for
the People and their/our Constitutional rights.

We, the Sovereigns, are not under any wings at all.

We are at the center, as the Truth is only there
and at equal intervals to any, outer point (of view.)

Any Justice system based on money is as close
to Justice as your chance of reimbursing FR notes
for gold at the Federal Reserve.

What is the operative part of the term Freedom?
From whence does Freedom derive?

As true Freedom can only be based on the dual polarity
of: knowledge and morals, their Union is Freedom
from ignorance and corruption.

Do we have Freedom, or that from which Freedom derives?

We, as the People, are only given enough
of Freedom not to revolt and/or vote those
who are elected in our name to be voted out
of office and; thus; power.

1) The Federal Government controls all the States,
as all for them obey certain Federal laws,
regardless of a set of own laws.

2) The Income tax is enforced, while it is Unconstitutional and so called "voluntary."

Why are people being jailed for failing
to volunteer, then?

3) When Courts operate under the provisions of
Admiralty, how can a semi-military modus be of
Freedom, when it is one step away from
the Marshall Law?

4) When the Governmental Agencies prosecute
the People under the statues of crime,
when crimes are not committed,
as they are defined, who is free?

5) When the Police can do anything it wants
under a claim, without any proof, just on word,
alone, of the officer that he/she was under
a threat and/or there was obstruction
of justice and such officer can arrest anyone,
who is not well connected with the Elite,
what Rights do People have then, indeed?

6) When, even, park rangers, drive along
the beaches of NY after 5 pm or when lifeguards
are leaving and announce to the public,
"all must come out of water - no life guards are
on duty,"
as if our waters and bodies do not belong to us,
what kind of Freedom is that?

7) When we go to Courts and have to face
their monkey and kangaroo zoo of the
an underwritten policy:

block the Pro Se by any means
and discourage any non-attorney appearance,
what should we call that?


So much for Freedom.

Yes, we are free to watch the CNN, soap-operas,
and the NBA.

Stuffing a ball into a net may be exciting at times.

"Yet, who cares," reply we, "what does that
change in our society?

78 balls in a net or 118?

The Citizens are still treated as if
they have no "balls"
and only "nets" are promoted
in a form of sexy pantyhose on women
to divert men's attention from the real issues in society.

Notice that the deeper is corruption, the more
1) sex is
thrown from all angles to divert the attention,
followed by
2) "games and entertainment" in general.


The famous two, have, always preceded
the fall of any Empire.

We would have freedom but
only when realize what it is founded on
KNOLWEDGE AND MORALS TOGETHER
and demand it by actions
to implement such in the morally just direction.


Amen!

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..............................

reserved

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The Federal Rules of Civil Procedure (FRCP)


Contents
1 Categories of Rules
1.1 Category I - Scope of the FRCP
1.2 Category II - Commencement of Suits
1.3 Category III - Pleadings and Motions
1.4 Category IV - Parties
1.5 Category V - Discovery
1.6 Category VI - Trial
1.7 Category VII - Judgment
1.8 Category VIII - Provisional and Final Remedies and Special Proceedings
1.9 Category IX - Special Proceedings
1.10 Category X - District Courts and Clerks
1.11 Category XI - General Provisions
2 External links


(FRCP)govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved by the United States Congress. The Court's modifications to the rules are usually based on recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body. Although federal courts are required to apply the substantive law of the states as rules of decision in cases where state law is in question, the federal courts almost always use the FRCP as their rules of procedure. States make their own rules that apply in their own courts, but most states have adopted rules that are based on the FRCP.

The rules, established in 1938, replaced the earlier Field Code and common law pleadings. They have undergone significant revisions in 1948, 1963, 1966, 1970, 1980, 1983, 1987, 1993, and 2000. (The FRCP contains a notes section which details the changes of each revision since 1938, explaining the rationale behind the wording). A new set of revisions to the FRCP is expected to take effect in December 2006, with practical changes in discovery rules that will make it easier for courts and litigating parties to manage electronic records.

Before the FRCP were established, common law pleading was more formal, traditional, and particular in its phrases and requirements. For example, a plaintiff bringing a tresspass 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.

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 plea the "ultimate facts" of their case, that is, laying out the party's entire case. Notice pleading, in the contrary, simply requires a "short and plain statement" showing only that the pleader is entitled to relief. (FRCP 8(a)(2)). The exception to this rule is, when a plaintiff alleges fraud the plaintiff must plead the facts of the alleged fraud with particularity.

(The Field Code was an intermediate step between common law and modern rules, created by New York attorney David Dudley Field. Adopted 1848–50. Field's code, among other reforms, merged law and equity proceedings into one.)

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Categories of Rules
There are 86 rules in the FRCP which are grouped into 11 categories. Listed below are the most commonly used categories and rules.


Category I - Scope of the FRCP
Rules 1 and 2.

Category I is a sort of "mission statement" for the FRCP, especially Rule 1, which states that the rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." Rule 2 unified the procedure of law and equity in the federal courts by specifying that there shall be one form of action, the "civil action."


Category II - Commencement of Suits
Rules 3 to 6.

Category II covers commencement of civil suits including filing, summons, and service of process.


Category III - Pleadings and Motions
Rules 7 to 16.

Category III covers pleadings, motions, defenses, and counterclaims. The plaintiff's original pleading is called a complaint. The defendant's original pleading is called an answer.

Rule 8(a) sets out the plaintiff's requirements for claim: a "short and plain statement" of jursidiction, a "short and plain statement" of the claim, and a demand for judgment. It also allows relief in the alternative.

Rule 8(b) states that the defendant's answer needs to admit or deny every element of the plaintiff's claim.

Rule 8(c) also requires that the defendant's answer state any affirmative defenses.

Rule 11 requires all papers to be signed by the attorney. It also provides for sanctions against the attorney or client for harassment, frivolous arguments, or a lack of factual investigation. The purpose of sanctions is deterrent, not punitive. Courts have broad discretion about the exact nature of the sanction which can include: consent to in personam jurisdiction, fines, dismissal of claims, or dismissal of the entire case. The current version of Rule 11 is much more lenient than its 1980s version. Supporters of tort reform in Congress regularly call for legislation to make Rule 11 stricter.

Rule 12(b) describes pretrial motions that can be filed.

lack of subject matter jurisdiction
lack of personal jurisdiction
improper venue
insufficient process
insufficient service of process
failure to state a claim
failure to join a party under Rule 19.

Rule 12(b)(6) is how lawsuits with insufficient legal theories underlying their cause of action are thrown out of court. For instance, assault requires intent. If the plaintiff has failed to plead intent, the cause of action can be dismissed via 12(b)(6). The is the first of three procedural hurdles a cause of action must pass over before it gets to a trial. A 12(b)(6) motion cannot include additional evidence such as affidavits. For getting rid of claims with insufficient factual basis (where the movant must submit additional facts to demonstrate the factual weakness in the plaintiff's case), a Rule 56 motion for summary judgment is used. 12(b)(6) motions replaced the common law demurrer.

Rule 13 describes when a defendant is allowed or required to assert claims against other parties to the suit. The law encourages people to resolve all of their differences as efficiently as possible, so in many jurisdictions counterclaims that arise out of the same transaction or occurrence (compulsory counterclaims) must be brought during the original suit or they will be barred from future litigation.


Category IV - Parties
Rules 17 to 25.

Rule 20 Permissive Joinder of Parties Joinder of parties at common law was controlled by the substantive rules of law, often as reflected in the forms of action, rather than by notions of judicial economy and trial convenience. Permissive joinder of plaintiffs allows the plaintiffs having an option to join their claims when they were not joint. (Ryder v. Jefferson Htel co.)

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Category V - Discovery
Rules 26 to 37.

Category V covers the rules of discovery. Modern civil litigation is based upon the idea that the parties should not be subject to surprises at trial. Discovery is the process whereby civil litigants seek to obtain information both from other parties and from non parties (or third parties). Parties have a series of tools with which they can obtain information: 1) Document requests: a party can seek documents and other real objects from parties and non parties 2) Interrogatores: a party can require other parties to answer questions 3) Requests for admissions: A party can require other parties to admit or deny the truth of certain statements 4) Depositions: A party can require individuals or representatives of organizations to make themselves available for questioning.

Federal Procedure also requires parties to divulge certain information without a formal discovery request, in contrast to many state courts where most discovery can only be had by request.


Category VI - Trial
Rules 38 to 53.


Category VII - Judgment
Rules 54 to 63.


Category VIII - Provisional and Final Remedies and Special Proceedings
Rules 64 to 71.


Category IX - Special Proceedings
Rules 72 to 76.



Category X - District Courts and Clerks
Rules 77 to 80.


Category XI - General Provisions
Rules 81 to 86.


External links
FRCP and other Electronic Discovery webcasts
Complete text of FRCP
O'Connor's Federal Rules * Civil Trials
Retrieved from "http://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure"