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procedure
Current Civil Procedure
A legal action, in its simplest form, is a proceeding of a plaintiff against a defendant from whom redress is sought. The plaintiff begins a lawsuit by filing a complaint, a written statement of his or her claim and the relief desired, with a court that has jurisdiction (authority to hear the case). The defendant is served a process (e.g., a summons) that notifies him or her of the suit and usually responds with an answer. Failure to respond ordinarily entitles the plaintiff to a judgment by default.
Today, liberal rules of pretrial discovery allow parties to a civil action to obtain information from other parties and their witnesses through depositions and other devices. Discovery (i.e., disclosure) is now used to ascertain the facts believed by the other side to exist, and to narrow the issues to be tried. At common law, pleadings performed this function, and they were continued beyond the complaint and answer until an issue was agreed upon.
The issue is one of law if the defendant denies that the alleged acts are a violation of substantive law entitling the plaintiff to relief; it is one of fact if the defendant denies committing any of the alleged acts. The judge rules on an issue of law, and if the judge upholds the defendant the suit is dismissed. An issue of fact is resolved by the presentation of evidence to the jury, or, in cases tried without a jury, by the judge. After the jury has delivered a verdict on the factual issue, the judge renders a judgment, which in most (but by no means all) instances upholds the verdict. At this point the case is closed (unless the losing party prosecutes an appeal), and the plaintiff, if having won, proceeds to execution of the judgment.
Evolution of Procedural Law
Current procedural law has had a long historical evolution. The early common law allowed an action to be brought only if it closely conformed to a writ. Rigorous enforcement of the rule “no writ, no right,” and the small number of available writs acted to deny relief even in meritorious cases and stimulated the growth of equity, which, in its early days, gave redress generously.
By the 19th cent., however, the technical intricacy of equity and law procedure and the tendency to make cases hinge on procedural details rather than on substantive rights made reform imperative. The way was led by the New York code of civil procedure of 1848 (largely the work of David Dudley Field), which abolished the distinction between law and equity (thereby effecting great simplification) and established the cause of action as the procedural cornerstone. A similar reform was accomplished in Great Britain by the Judicature Acts of 1875. Today the procedure of most American jurisdictions is based on codes (like that of New York) rather than on common law and equity, although the influence of these separate categories is still frequently discernible.
Bibliography
See J. Michael, The Elements of Legal Controversy (1948); P. Carrington, Civil Procedure (1969).
Suit
the initiation of proceedings before a court, arbitrazh (state arbitration tribunal), or private arbitration board in connection with a violated or contested right or an interest protected by law. Under Soviet law, a court is obliged to accept the suit, to examine it, and to render a decision provided that (1) the plaintiff or defendant is a citizen or organization exercising the rights of a legal person; (2) the claim is within the jurisdiction of the judicial agencies, and the plaintiff has complied with the legally established procedure for the preliminary extrajudicial settlement of the dispute; (3) there is no decision that has come into legal force in connection with the dispute between the same parties concerning the same subject and on the same grounds, no court ruling accepting the withdrawal of the suit by the plaintiff or confirming a peaceful settlement by the parties, and no decision of the comrades’ court; (4) there are no records of the given dispute in the court proceedings; (5) no agreement has been reached by the parties to transfer the dispute for resolution by a private arbitration board; (6) the case is subject to the jurisdiction of the given court; and (7) the suit was submitted by a citizen who is legally competent or by a person having authority to conduct the case on his behalf. An arbitrazh is also obliged to accept the suit, to consider it, and to render a decision provided certain conditions exist (most of them coincide with the conditions of bringing a suit before a court).
The form and the content of a suit are established by law. The suit is submitted in writing, indicating the name of the court or arbitrazh before which the suit is being brought, the full names of the plaintiff and defendant, their places of residence, and other essential information. The suit must be signed by the plaintiff or by his representative, and the state tax must be paid at the time of the submission of the suit. In the statement of claim directed to the arbitrazh the plaintiff must give his reasons for declining the defendant’s arguments as they were stated in the response to the claim, in the records of the disagreement, and in other documents received from the defendant. The subject and the grounds of the suit may be changed by the plaintiff; he has the right, for example, to change the amount of the claim or to withdraw his suit.
M. P. RING
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suit
(1)suit
(2)See loser, burble, management, Stupids, SNAFU principle, and brain-damaged.