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Encyclopedia > Pleading
Civil Procedure in the U.S.
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In law as practiced in countries that follow the English model, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. A complaint is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief whereas a demurrer is a pleading filed by a defendant which challenges the legal sufficiency of a complaint and an answer is a pleading which admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. A defendant may also file a cross-complaint as well as bringing other parties into a case by the process of impleader. Image File history File links Question_book-3. ... Image File history File links Broom_icon. ... Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a civil action, as opposed to a criminal action). ... The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. ... Civil procedure doctrines are rules developed by case law as opposed to being set down in codes or legislation, which, together with Court Rules / Codes, define the steps that a person involved in a civil lawsuit can, may, or can not take. ... This article does not cite any references or sources. ... Subject matter jurisdiction is a legal term used in civil procedure to indicate that a case must be entered in the proper court of law based on the nature of the claim. ... Diversity jurisdiction is a term used in civil procedure to refer to the situation in which a United States district court has subject matter jurisdiction to hear a civil case because the parties are diverse, meaning that they come from different states. ... Personal jurisdiction, jurisdiction of (or over) the person, or jurisdiction in personam is the power of a court to require a party (usually the defendant) or a witness to come before the court. ... In the United States, removal jurisdiction refers to the power of a defendant to move a lawsuit filed in state court to the Federal district court of the original courts district. ... Venue is the location where a case is heard. ... A change of venue is the legal term for moving a trial to a new location. ... This article does not cite any references or sources. ... A legal motion is a procedural device in law to bring a limited, contested matter before a court for decision. ... Service of process is the procedure employed to give legal notice to a person (defendant etc. ... In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, for example. ... In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ... In law, a class action is an equitable procedural device used in litigation for determining the rights of and remedies, if any, for large numbers of people whose cases involve common questions of law and fact. ... The U.S. Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332(d), 1453, and 1711-1715, grants federal courts original jurisdiction over certain mass actions and class actions (forms of civil action) in which the amount in controversy exceeds $5 million, and any of the members... In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint without admitting or denying the allegations therein. ... In the common law, an answer is the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint or criminal information or indictment has been served upon the defendant. ... An affirmative defense is a defense used in litigation between private parties in common law jurisdictions. ... The reply is a response by plaintiff to defedants answer. ... A Counterclaim is made by the defendant to a civil procedure, in a main actions against the plaintiff or against the plaintiff and other persons. ... A cross-claim is a claim brought against a co-party in the same side of a lawsuit. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... Impleader is procedural device before trial in which a party joins a third-party into a lawsuit because that third-party is liable to an original defendant. ... Interpleader is a device allowed in U.S. civil litigation. ... In law, intervention is a procedure to allow nonparties to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. ... Look up trial in Wiktionary, the free dictionary. ... In law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for... In law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of evidence and help to determine in advance what facts will be presented at any trial in the case. ... In law, a deposition is evidence given under oath and recorded for use in court at a later date. ... Default judgment is a binding judgment in favor of the plaintiff when the defendant has not responded to a summons or has failed to appear before a court. ... Summary judgment is a legal term which means that a court has made a determination (a judgment) without a full trial. ... Voluntary dismissal is when a law suit is terminated by request of the plaintiff (the party originally bringing the suit to court). ... Involuntary dismissal is the termination of a court case despite the plaintiffs objection. ... For other uses of settlement, including legal uses, see Settlement. ... In legal parlance, a trial is an event in which parties to a dispute present information (in the form of evidence) in a formal setting, usually a court, before a judge, jury, or other designated finder of fact, in order to achieve a resolution to their dispute. ... A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. ... A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... An empty jury box in an American courtroom For jury meaning makeshift, see jury rig. ... The phrase voir dire derives from Middle French; in modern English it is interpreted to mean speak the truth and generally refers to the process by which prospective jurors are questioned about their backgrounds and potential biases before being invited to sit on a jury. ... In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action. ... A judgment (or judgement; see spelling note below), in a legal context, is synonymous with the formal decision made by a court following a lawsuit. ... Judgment as a matter of law(JMOL) is a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case. ... Renewed judgment as a matter of law (JMOL) is the partner of judgment as a matter of law in American Federal courts. ... Judgment notwithstanding the verdict, or J.N.O.V. for short (English Judgment + Latin Non Obstante Veredicto) is a type of J.M.O.L., or Judgment as a matter of law, that is ordered at the conclusion of a jury trial. ... In law, a motion to set aside judgment is an application to overturn or set aside a courts judgment, verdict or other final ruling in a case. ... In law, the expression trial de novo literally means new trial. It is most often used in certain legal systems that provide for one form of trial, then another if a party remains unsatisfied with the decision. ... In law, a Judicial remedy is the means by which a court, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order. ... Look up Injunction in Wiktionary, the free dictionary. ... In law, damages refers to the money paid or awarded to a claimant (as it is known in the UK) or plaintiff (in the US) following their successful claim in a civil action. ... Attorneys fees or attorneys fees are the costs of legal representation that an attorneys client or a party to a lawsuit incurs. ... The American Rule is a rule regarding assessment of attorneys fees arising out of litigation. ... The English Rule is a rule regarding assessment of attorneys fees arising out of litigation. ... A declaratory judgment is a judgment of a court which declares what rights each party in a dispute should have, but does not order any action or result in any legal damages. ... In law, an appeal is a process for making a formal challenge to an official decision. ... A writ of mandamus or simply mandamus, which means we order in Latin, is the name of one of the prerogative writs and is a court order directing someone, most frequently a government official, to perform a specified act. ... Certiorari (pronunciation: sər-sh(ē-)ə-ˈrer-ē, -ˈrär-ē, -ˈra-rē) is a legal term in Roman, English and American law referring to a type of writ seeking judicial review. ... For other uses, see Law (disambiguation). ... A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermanns Microcosm of London (1808-11). ... A lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. ... In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, for example. ... In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint without admitting or denying the allegations therein. ... In the common law, an answer is the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint or criminal information or indictment has been served upon the defendant. ... A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ... In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ... ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... A special appearance is a term used in the United States law of civil procedure to describe a civil defendants appearance in the court of another state solely to dispute the personal jurisdiction of the court over that defendant. ... In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, for example. ... Impleader is procedural device before trial in which a party joins a third-party into a lawsuit because that third-party is liable to an original defendant. ...

Contents

Types of pleading

Common law pleading

Common law pleading was the system of civil procedure used in England, where each cause of action had its own separate procedure: law and equity were entirely different judicial systems, each with its own causes of action and available remedies. Because the list of causes eligible for consideration was capped early during the development of the English legal system, claims that might be acceptable to the evolving court often did not match up perfectly with any of the established causes. Lawyers might have to engage in great ingenuity to shoehorn their clients' claims into the necessary "elements" required to bring an action. Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a civil action, as opposed to a criminal action). ... For other uses, see England (disambiguation). ... In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ... For other uses, see Law (disambiguation). ... The Court of Chancery, London, early 19th century This article is about the concept of equity in the jurisprudence of common law countries. ...


Code pleading

Code pleading was introduced in the 1850s in New York and California. Code pleading sought to abolish the distinction between law and equity[1]. It unified civil procedure for all types of actions as much as possible, and the required elements of each action are set out in carefully codified statutes. This article is about the state. ... This article is about the U.S. state. ...


However, code pleading was criticized because many lawyers felt that it was too difficult to fully research all the facts needed to bring a complaint before one had even initiated the action, and thus meritorious plaintiffs could not bring their complaints in time before the statute of limitations expired. Code pleading has also been criticized as promoting "hypertechnical reading of legal papers"[2].


Notice pleading

Notice pleading is the dominant form in the United States today. In 1938, the Federal Rules of Civil Procedure were adopted. One goal was to relax the strict rules of code pleading. Code pleading served four purposes: notice, issue narrowing, pleading facts with particularity and eliminating meritless claims. Federal Rule of Civil Procedure (rule 8) eliminated all of those requirements except for the notice requirement (hence we call it notice pleading). The requirements that were eliminated were shifted to discovery (another goal of the FRCP). In notice pleading, plaintiffs are required to state in their initial complaint only a short and plain statement of their cause of action. The idea is that a plaintiff and their attorney who have a reasonable but not perfect case can file a complaint first, put the other side on notice of the lawsuit, and then strengthen their case by compelling the defendant to produce evidence during the discovery phase. The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. ...


Alternative pleading

Alternative pleading is a legal fiction permitting a party argue two mutually exclusive possibilities, for example, submitting an injury complaint alleging that the harm to the plaintiff caused by the defendant was so outrageous that it must have either been intended as a malicious attack or, if not, must have been due to gross negligence. Alternative pleading is a legal fiction permitting a party to argue multiple possibilities that may be mutually exclusive. ... In the common law tradition, legal fictions are suppositions of fact taken to be true by the courts of law, but which are not necessarily true. ... In logic, two mutually exclusive (or mutual exclusive according to some sources) propositions are propositions that logically cannot both be true. ...


Specific jurisdictions

England and Wales

In England and Wales, pleading is covered by the Civil Procedure Rules. Pleadings are referred to as 'Statements of Case'. The Civil Procedure Rules 1998 came into force in England & Wales on 26 April 1999, largely replacing and significantly overhauling the previous Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules. ...


A variant of 'Notice Pleading' is used wherever possible, which is called the 'Pre-Action Protocols'. There are various Pre-Action Protocols, covering different types of dispute, and one general practice direction covering everything else. Whilst they vary slightly, the protocols all follow the same idea. As soon as someone becomes aware they are likely to bring a claim against someone, they should first write a short letter to their prospective opponent telling them. Once they have sufficient information to set out roughly what the claim is about, they should write what has now been termed a 'protocol letter', setting out all the information they base their claim on, confirming all the details of the claim, and including a request for any documents held by the opponent.


The opponent should acknowledge having received the letter, and after that, within a reasonable time (usually three months), write a letter of response, enclosing any requested documents.


The parties should then negotiate a settlement. Only if a settlement cannot be reached, or if the statute of limitations is due to expire, should a Claim be formally commenced in the court, and by that time each party should have all the information they need to provide comprehensive pleadings.


If a party does not co-operate with the pre-action protocol, they could find themselves penalised by having to pay the other party's legal bills, and / or getting an order made against them for disclosure (discovery)


Once proceedings formally start, there is a strict timetable for Statements of Case, which this time have to be fully plead, setting out all the main allegations each party will make. The Claimant must deliver his / her pleadings to the opponent within four months of starting the claim (in fact the court usually does this for the Claimant automatically as soon as the Claim is commenced).


The Defendant has two weeks to respond with either a tender of a sum of money, an admission of liability, an admission together with a request for time to pay, a Defence (the Defendant's pleading), a Counter-claim or a combination of the above. In most litigation under the common law adversarial system the defendant, perhaps with the assistance of counsel, may allege or present defenses (or defences) in order to avoid liability, civil or criminal. ...


If two weeks is insufficient, if the Defendant acknowledges to the court that they have received the documents, that period will be extended to four weeks. The parties can agree an extension of up to eight weeks if they wish.


If a Defence is filed, the Claimant may provide a further pleading called a 'Reply', although that is optional. If there is a Counterclaim, the Claimant needs to either admit that or provide a further pleading called 'Defence to Part 20 Claim'.


Once all this has happened, a stage known as 'Close of Pleadings' is reached, and the case will progress, although it is not uncommon for Pleadings to be amended after this point if the court agrees.


References

  1. ^ e.g., Hurwitz v. Hurwitz, 78 U.S. App. D.C. 66, 136 F.2d 796, 799 (1943)
  2. ^ United States v. Uni Oil, Inc., 710 F.2d 1078, 1080-81 n.1 (5th Cir. 1983)

See also

Look up prima facie in Wiktionary, the free dictionary. ... In pleading, a general denial is a denial that relates to all allegations which are not otherwise pleaded to. ... A negative pregnant (sometimes called a pregnant denial) refers to a denial which implies its affirmative opposite by seeming to deny only a qualification of the allegation and not the allegation itself. ...

  Results from FactBites:
 
pleading: Definition and Much More from Answers.com (1739 words)
Pleadings are either Allegations by the parties affirming or denying certain matters of fact, or other statements in support or derogation of certain principles of law, which are intended to describe to the court or jury the real matter in dispute.
Different systems of pleading have been organized generally to serve four functions: (1) to give notice of the claim or defense; (2) to reveal the facts of the case; (3) to formulate the issues that have to be resolved; and (4) to screen the flow of cases into a particular court.
Alternative pleading is a legal fiction permitting a party argue two mutually exclusive possibilities, for example, submitting an injury complaint alleging that the harm to the plaintiff caused by the defendant was so outrageous that it must have either been intended as a malicious attack or, if not, must have been due to gross negligence.
  More results at FactBites »

 
 

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