1 / 46

Researching Civil Procedure

Researching Civil Procedure. The Purpose of Court Rules. When construing the FRCP, the highlighted language should guide your efforts. http://judiciary.house.gov/media/pdfs/printers/109th/31308.pdf.

Télécharger la présentation

Researching Civil Procedure

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.


Presentation Transcript

  1. Researching Civil Procedure

  2. The Purpose of Court Rules When construing the FRCP, the highlighted language should guide your efforts. http://judiciary.house.gov/media/pdfs/printers/109th/31308.pdf

  3. Additional Purposes of Court RulesTo regulate the business of courtsTo control the conduct of litigantsTo establish uniform proceduresTo provide parties with information and instructions about proceedings

  4. Working with Rules

  5. Read the Rule Read the Rule Read the Rule! With apologies to Felix Frankfurter (“read the statute…)

  6. The U.S. House of Representatives, Committee on the Judiciary, Print Shop, maintains the current text of of the FRCP and other federal rules in .pdf format: http://judiciary.house.gov/Printshop.aspx?Section=1

  7. The front page of the rules will state the date on which any amended rules took effect.

  8. Research into the Federal Rules of Civil Procedure can look forward from or back to the enactment of the rule.

  9. Working forward in Time from a Rule’s Adoption or Amendment: What the Courts say about the text of a rule

  10. Look for Intelligent Commentary and Analysis

  11. Treatises and other multi-volume works listed here will answer almost every research question regarding the Federal Rules of Civil Procedure that you will ever encounter.

  12. Read a Treatise The exhaustive scholarly treatment of the federal rules of civil procedure (as well as those of criminal procedure, appellate procedure, and evidence) makes Federal Practice and Procedure, by Charles A. Wright and others a key starting point for your research. “Wright and Miller” is cited more than a thousand times each year in published federal district and appellate court decisions. Wright and Miller explains the history of each rule, explains how the rule has been interpreted, and cites to cases that have discussed and interpreted the rule. Law Library: 3d ed. West, 1998 -. KF8840 W71 (2 copies, one on Reserve). Westlaw: FPP

  13. A less scholarly and more practitioner-oriented multi-volume treatise is James W. Moore, Moore’s Federal Practice, cited in published federal opinions about half as often as Wright and Miller (still a respectable number). Although coverage is similar to that of Wright and Miller, Moore’s also contains the Manual for Complex Litigation and the Reference Manual on Scientific Evidence. Law Library: 3d ed. Matthew Bender, 1997 -. KF8837 M6 1997. Lexis:Legal > Secondary Legal > Matthew Bender > By Area of Law > Federal Practice >

  14. Most volumes of Wright and Miller and Moore’s Federal Practice are organized by rule number, with a number of other volumes covering jurisdiction. Good entry points include subject indexes tables of statutes tables of rules. Both Wright and Miller and Moore’s have online indexes. Indexes are frequently more helpful in quickly identifying the proper area of a multi-volume treatise than is a keyword search of the full-text.

  15. Multi-volume treatises organized by subject: Federal Procedure, Lawyer’s Edition: A Problem-Solving Textual Analysis of Federal Judicial and Administrative Procedure. West, 1981 -. Law Library: KF8840 .F44. Westlaw: FEDPROC

  16. Shorter analytical treatises include: Jack H. Friedenthal, et al., Civil Procedure. 5th ed. 2005). Law Library: KF 8840 .F72 2005 (Reserve). Fleming James, Jr., et al., Civil Procedure (5th ed. 2001). Law Library: KF 8840 .J3 2001 Larry L. Teply, Ralph U. Whitten, Civil Procedure (3d ed. 2004). Law Library: KF 8840 .T46 2004) (has a more historical perspective of the development of the rules of civil procedure than the other hornbooks)

  17. Both the United States Code Annotated(U.S.C.A.) (West) and the United States Code Service (U.S.C.S.) (Lexis) have volumes for the Federal Rules of Civil Procedure, with annotations to treatises and journal articles. Because the two publishers provide annotations to their own publications, look at both sets if you have access to both. U.S.C.A. U.S.C.S.

  18. U.S.C.A. References to Treatises, Encyclopedias, and Law Review Articles for 28 U.S.C. § 2073.

  19. U.S.C.S. References to Treatises, Encyclopedias, and Law Review Articles for 28 U.S.C. § 2073.

  20. Looking for Cases Directly

  21. Both the United States Code Annotated(West) and the United States Code Service (Lexis) have volumes for the Federal Rules of Civil Procedure, with annotations to case law. In general, the case annotations for the sets have no more than 60% overlap. As with the references to treatises and journal articles in these sets, if you have access to both sets, you should consult both sets.

  22. Case Services Federal Rules Decisions (West). The FRD has cases from the United States District Courts regarding the FRCP. Coverage begins in 1938. In addition, the FRD contains articles, speeches, and reports of judicial conferences. Law Library: KF105 .F44. Westlaw: FRD (cases, articles and court rules); FRD-ART (articles); FRD-CS (cases); FRD-Rules (versions of FRCP and amendments; coverage starts with 1944).

  23. Federal Rules Service (West). The Federal Rules Service contains federal cases that address FRCP issues. Irrelevant issues are omitted. A separate FINDEX index helps locate cases. The general organization of the set is by FRCP Rule. Law Library: KF8830 .F4.

  24. Federal Rules Digest

  25. Working Backward in Time

  26. Looking for Intent of the Courts and Congress in Promulgating the Rules

  27. The Rules Enabling Act of June 19, 1934, ch. 651, 48 Stat. 1064 (now codified at 28 U.S. Code § 2071-2077), authorized the Supreme Court to prescribe rules of civil procedure for the district courts. Under the current version of § 2074, the Supreme Court must transmit proposed amendments to the Congress by May 1. The amended rule cannot become effective before December 1. The original rules were adopted by order of the Supreme Court on December 20, 1937, transmitted to Congress by the Attorney General on January 3, 1938, and became effective September 16, 1938. (308 U.S. 645; Cong. Rec., vol. 83, pt. 1, p. 13, Exec. Comm. 905; H. Doc. 460 and H. Doc. 588, 75th Cong.)

  28. Federal Rules of Procedure: Effective Dates • Federal Rules of Civil Procedure • Effective 9-16-1938 • Federal Rules of Criminal Procedure • Effective 3-21-1946 • Federal Rules of Appellate Procedure • Effective 7-1-1968 • Federal Rules of Evidence • Effective 7-1-1975 The FRCP has extensive legislative and judicial history from prior to and after its adoption in 1938. The FRCP has been amended frequently since 1938.

  29. STEP 1 Suggestion for a change in the rules, submitted in writing to the secretary, at any time. Referred by the secretary to the appropriate advisory committee, promptly after receipt. Considered by the advisory committee, normally at the next committee meeting. If approved, the advisory committee seeks authority from the Standing Committee to circulate to bench and bar for comment. How federal rules of procedure are promulgated

  30. STEP 2 6 month public comment period. Public hearings may be held during the public comment period. STEP 3  Advisory committee considers the amendment afresh in light of public comments and testimony at the hearings, about one or two months after the close of the comment period. Advisory committee approves amendment in final form and transmits it to the Standing Committee, about one or two months after the close of the comment period.

  31. STEP 4   Standing Committee approves amendment, with or without revisions, and recommends approval by the Judicial Conference, normally at its June meeting. STEP 5   Judicial Conference approves amendment and transmits it to the Supreme Court, normally at its September session.

  32. STEP 6 The Supreme Court prescribes the amendment, by May 1. STEP 7 Congress has a statutory time period in which to enact legislation to reject, modify, or defer the amendment, by December 1. Absent Congressional action, the amendment becomes law.

  33. Local Rules Fed. R. Civ. P. 83 partially delegates U.S. Supreme Court’s rulemaking power by authorizing the district courts to promulgate local rules for conduct of their business, providing that the rules do not conflict with Acts of Congress or Rules of Practice and Procedure. Hence, litigation is subject to both national and local court rules, both of which must be researched.

  34. As with any Act of Congress, the major sources of legislative history are hearings, reports, prints, and debates.

  35. The judicial history includes documents from the rule-creation process (reports), although cases interpreting the rules may state what the intent in promulgating a rule was.

  36. Looking for Proposed Rules

  37. Locating Proposed Rules • House Judiciary Committee, subcommittee on Courts, the Internet, and Intellectual Property • Senate Judiciary Committee, subcommittee on Administrative Oversight and the Courts • U.S. Courts, Federal rulemaking • Eleventh Circuit

  38. http://judiciary.house.gov/committeestructure.aspx?committee=3http://judiciary.house.gov/committeestructure.aspx?committee=3 http://judiciary.senate.gov/subcommittees/110/oversight110.cfm

  39. http://www.uscourts.gov/rules/index.html For modern rule-making, this is the best place to start.

  40. Other online Websites for Court Rules • Federal Rules of Procedure • Cornell’s Legal Information Institute: • http://www.law.cornell.edu/wex/index.php/Court_rules • LLRX: http://www.llrx.com/courtrules • Federal Local Court rules • 11th Circuit Court of Appeals • http://www.ca11.uscourts.gov/rules/index.php • U.S. District Court, Northern District of Florida • http://www.flnd.uscourts.gov/attorneys/index.cfm

  41. Start with pocket parts or supplements to USCA and/or USCS Advance sheets to Federal Reporter and Federal Supplement contain text of proposed & adopted amendments with Advisory Committee notes U.S. Code Congressional & Administrative News (USCCAN) Court websites Updating Federal Court Rules

  42. Florida Courts website, Proposed and Amended Rules http://www.floridasupremecourt.org/decisions/index.shtml Florida Bar Website http://www.floridabar.org/tfb/TFBLegalRes.nsf/ First District Court of Appeals, Administrative Orders http://www.1dca.org/ordersframe.htm Second Judicial Circuit, Administrative Orders/Local Rules http://www.2ndcircuit.leon.fl.us/index.php?Page=AdminOrders.php Florida Rules

More Related