Essential Pieces of Civil Procedure

by JRO on August 13, 2013

The American legal system is divided into two specific and equally important sections: criminal law, and civil law. Under this system, only a criminal proceeding can result in the individual receiving a punishment, in the form of a prison sentence or a monetary fine. Additionally, criminal charges can only be filed by officers of the court, who have been granted prosecutorial powers by a governing body. On the other hand, civil proceedings deal with legal disputes involving two parties viewed as private individuals, and can never result in a jail sentence. Although the regulations allow for civil lawsuits to be filed against any governing body in the United States – and vice-versa allow the state and federal agencies to file civil charges against private individuals – the specific government will not, in the vast majority of cases, be afforded the same privileges it enjoys in criminal trials.

• United States Civil Law: Basic Rules and Concepts

As already emphasized, the most important characteristic of American civil law is its capability to grant financial restitution to the winning party, while lacking the power to impose any type of criminal punishment. All civil matters will involve a dispute between the plaintiff – the individual filing the lawsuit and seeking compensatory damages – and the defendant – the person or party believed to be legally liable for the plaintiff’s loss. Additionally, the burden of proof in civil matters is significantly different from the one accepted in criminal trials, and relies on a concept known as “preponderance of evidence”. Unlike the notion of “reasonable doubt” that places the burden of proof on the prosecution and requires unanimous “guilty” verdicts in criminal cases, juries in civil trials are allowed to select one party’s version of events, even if they have remaining doubts regarding some of the presented evidence and arguments. However, the plaintiff’s case still has to be legally sound, before it may be allowed to proceed to jury trial.

• United States Civil Law: The Complaint

All civil action must begin with a formal complaint, filed by the plaintiff with the appropriate court, which must include several important pieces of information:

1. The complaint is required to name the party believed to be at fault, referred to as the defendant – or the respondent if the case falls under family law.
2. The plaintiff must provide their own version of events, and the legal reasoning that makes the defendant directly responsible.
3. The complaint must specify the damages being sought by the plaintiff as compensation for the defendant’s conduct.

In addition to the complaint, the plaintiff will also have to request a summons notifying the defendant of the legal action filed against them. Usually, only after the other party is formally notified, can the civil action be allowed to proceed.

• United States Civil Law: Pre-trial Motions and Depositions

The pre-trial phase plays a very important part in civil cases, and less than 1% of cases actually proceed to trial. Oftentimes, cases will be settled during the pre-trial stage to limit the costs of continuous legal representation. Additionally, both the plaintiff and the defendant may file various motions for action with the court, with the following being the most common in American civil cases:

1. Motion to Discover – usually filed by the plaintiff with the court, to gather all information related to the case, currently in defendant’s possession.
2. Motion to Dismiss – filed by the defendant, asking the judge for dismissal of the complaint because it lacks legal basis.
3. Motion to Compel – filed by either party in belief the information received during discovery is purposely incomplete
4. Motion in Limine – a request made by either party to specifically include (or exclude) any evidence that normally would be viewed as overly prejudicial.

In addition to the above motions, the discovery stage will also include formal depositions case. During a deposition, the attorneys are allowed to question anyone related to the facts of the case, including the plaintiff and the defendant. Also, all individuals being deposed have to be sworn in first, and there will usually be a court reporter present that records the given statement into evidence.

• United States Civil Law: The Trial

Although most civil cases are resolved during the pre-trial stage, a small number of cases do proceed to trial. In such instances, both parties must present their witness list to the court usually at least one week before the start of the trial, although the specific requirements may differ based on particular jurisdiction. Similarly, all evidence exhibits that will be presented must be properly labeled, known to both parties, and the list must be filed with the court. The plaintiff will always be required to present its case first, before the defendant offers its own counterarguments. Once both sides rest, and give their closing arguments, the case will be forwarded to the fact-finder, which may be a jury panel or the presiding judge. If the fact-finder finds for the plaintiff, the judgment will be accompanied by compensatory damages, as well as possible punitive damages. On the other hand, if the verdict supports the defendant’s position – unless a countersuit is filed – no financial restitution will be ordered.

Federal Rules of Civil ProcedureU.S. Federal Court: Courtroom and Trial Procedures

Daniel Bernstein is a freelance writer who focuses on a variety of topics such as Banking Law, Contracts, Civil Procedure, Finance, Accounting, Tax Law, Taxation and other subjects; those interested in finance may want to check out the accounting jobs with by visiting




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