Civil Procedure

Civil procedure refers to that body of law (usually in the form of collective and published rules) that concerns itself with the methods, procedures, and practices used in civil proceedings. Civil proceedings are distinguished from criminal or administrative proceedings, which are governed by their own respective rules of procedure. Most (but not all) civil proceedings involve “litigation” or lawsuits between private parties or entities (such as business corporations) and the focus herein generally relates to key procedures in the litigation process.

Procedural law is intended to safeguard those vested rights in life, liberty, and property that are guaranteed by the U.S. Constitution. The Fifth Amendment to the Constitution provides that “No person shall be … deprived of life, liberty, or property without due process of law [the “due process clause”]; nor shall private property be taken for public use, without just compensation.” The Fourteenth Amendment to the Constitution makes those provisions applicable to the states.

In almost every civil lawsuit, there will be a prevailing (winning) party and a defeated (losing) party. Judgment against the losing party (whether it is the person who filed the claim or the person against whom the claim was made) generally means he or she will be adversely affected. The constitutional guarantee of “due process of law” ensures that persons whose rights may be adversely affected by litigation have the opportunity for their “day in court,”—to be heard and to present proof(s) in support of their claim or defense. Accordingly, before any judgment can be made for or against a party, certain procedural safeguards warrant that a just and fair hearing on the matter has been conducted and that all parties whose interests may be affected by the controversy have been notified of their right to be heard.

Civil procedure, then, helps provide the “structure” needed to guarantee a fair and just determination of the controversy, while also serving to move the matter through the legal system in an orderly and consistent manner. It governs such actions as the way in which service of process is made upon a defendant, the number of days and manner in which parties may “discover” one another’s evidence, and the manner in which parties may present their controversies or objections to the court. Additional rules of procedure may have more simple purposes, such as uniformity or judicial economy. In any event, courts have the power and authority of law (in the absence of abuse of discretion) to dismiss lawsuits and/or deny remedies if procedural rules are not followed.


Inside Civil Procedure