procedure

procedure

[pruh-see-jer]
procedure, in law, the rules that govern the obtaining of legal redress. This article deals only with civil procedure in Anglo-American law (for criminal procedure, see criminal law). Except for evidence, procedure conventionally embraces all matters concerning legal actions that come to trial; thus, procedure is the means for enforcing the rights guaranteed by the substantive law.

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).

or rules of order

Generally accepted rules, precedents, and practices used in the governance of deliberative assemblies. They are intended to maintain decorum, ascertain the will of the majority, preserve the rights of the minority, and facilitate the orderly transaction of business. Rules of parliamentary procedure originated in Britain in the 16th and 17th centuries and were subsequently adopted by legislatures around the world. Robert's Rules of Order, codified in 1876 by U.S. Gen. Henry M. Robert (1837–1923) and regularly refined and enlarged, is the standard set of rules used by legislatures in the U.S.

Learn more about parliamentary procedure with a free trial on Britannica.com.

In Anglo-American law, the principal method of offering evidence in court. It requires the opposing sides to present pertinent information and to introduce and cross-examine witnesses before a jury and/or a judge. Each side must conduct its own investigation. In criminal proceedings, the prosecution represents the government and has at its disposal the police department with its investigators and laboratories; the defense must arrange and pay for its own investigation. (Legal aid is available for the poor.) In civil (noncriminal) proceedings the adversary system works similarly, except that both sides engage private attorneys to prepare their cases. Skillful questioning often produces testimony that can be interpreted in various ways; in cross-examination, lawyers seek to alter the jury's initial perception of the testimony.

Learn more about adversary procedure with a free trial on Britannica.com.

A procedure is a specified series of actions, acts or operations which have to be executed in the same manner in order to always obtain the same result under the same circumstances (for example, emergency procedures). Less precisely speaking, this word can indicate a sequence of activities, tasks, steps, decisions, calculations and processes, that when undertaken in the sequence laid down produces the described result, product or outcome. A procedure usually induces a change.

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