Short history of US civil procedure

Common-law pleading and procedure constituted a dismal and exceptionally intricate art. Colonial process never attained the heights, or the depths, of English common law procedure, a minefield of technicalities that only sappers trained in the law could navigate. Procedurally speaking, there were wide differences between colonies – between the loose, informal justice of early Massachusetts and the more conservative, more formal process in the middle Atlantic and southern colonies.

Seventeenth-century procedure was loose, boneless, easy-going. When judges are laymen, and not fussy about the separation of powers, a court is bound to be run informally. Nobody even knew the arcane rules of English procedure. And county court government was government at the point where men apply rules to ordinary life. Justice of that sort has an unstructured look; but if one compares colonial process, not with England’s high courts but with English local courts, with the justice dispensed by the local gentry – the justices of the peace – the differences may not be quite so striking.

The fundamentals – jury, grand jury, writ, summons, written pleadings and oral testimony – were as fundamental in the colonies as in England, though never exactly the same as in the mother country. In detail, colonial procedure was a curious mixture.

Conciliation and arbitration were widely used in colonial law. Such methods of course avoid technical courtroom procedure. The courts themselves sometimes referred matters out for arbitration. Procedure was simplified so as to render justice inexpensive and easily accessible, and yet formal enough to provide adequate safeguards for litigants. Process was speedy and cheap, compared to English process; costs were measured in pennies, not in pounds; judgment was generally given on the day of the trial. The Massachusetts summons, unlike the English writ, was stripped of jargon, translated from Latin to English, and greatly streamlined in form. Forms of action were reduced to a few simple headings.

Eighteenth-century civil process, on the whole, was an uneasy mixture of several strands: lawyer’s law, the needs of the merchants, the will of the sovereigns, and local tradition.

There was no chance that classical English pleading would be established after Independence. English procedure was too medieval for the modern world. Reform of civil procedure, at any rate, found fertile soil in the United States. Pleading reform was one of the changes the explosions in legal consumers made necessary.

Reform did not come in one great burst. Georgia, in the eighteenth century, passed a series of laws that went a long way toward rationalizing its civil procedure. The climax was the Judiciary Act of 1799. Georgia’s law was, among other things, a courageous attempt to join together equity and common-law pleading.

Equity boasted a flexible collection of remedies; it had often prodded and pushed more lethargic common law in more rational (and just) directions. But equity had itself become hidebound; by 1800, it needed procedural reform even more desperately than the common law; it was equity, not law. In the United States many states simply handed over the powers and tools of equity to ordinary courts of common law. The same judges decided both kinds of case. Some states had no equity or equity courts at all. Louisiana was one of these, because of its civil-law heritage. Massachusetts and Pennsylvania were outstanding common-law examples.

In general, “law” was bent to suit “equity”; but not all the change was in one direction. The common law courts loved the spoken word – testimony, cross-examination – all in open court. Equity loved documents, papers, written evidence, and classically tolerated nothing else. But the Judiciary Act of 1789 provided for oral testimony in federal equity cases. Georgia allowed trial by jury in some kinds of lawsuit which, traditionally, belonged on the equity side of the bench. North Carolina, in a statute of 1872, did the same.

There is not enough systematic information on what the average trial was like. What we do know is that the average trial was simple, short and relatively informal. And even major trials – trials with political overtones – were by later standards unfair.

Answer the following questions:

1) What was the seventeenth-century procedure like?

2) What methods were widely used in colonial law?

3) Why did the reform of the civil procedure find fertile soil in the United States?

4) What was the difference between common law and equity?

5) What do we know about the average trial?

TASK 4. Fill in the gaps with the appropriate words from the box:

average trial; lawsuit; equity courts; common-law pleading; conciliation and arbitration; cross-examination; oral testimony; summons

(1) The _________ was simple, short and relatively informal.

(2) __________and procedure constituted a dismal and exceptionally intricate art.

(3) Georgia allowed trial by jury in some kinds of ___________ which, traditionally, belonged on the equity side of the bench.

(4) __________ were widely used in colonial law.

(5) But the Judiciary Act of 1789 provided for ____________ in federal equity cases.

(6) ____________, written pleadings and oral testimony – were as fundamental in the colonies as in England.

(7) The common law courts loved the spoken word – testimony, _____________.

(8) Some states had no equity or _______________ at all.

TASK 5. Match the following English expressions with their Russian equivalents. Use the expressions in the table to make sentences of your own.

1) equity 2) lawsuit 3) summons 4) writ 5) testimony 6) pleading 7) common law 8) conciliation 9) civil procedure 10) cross-examination

a) гражданское судопроизводство b) примирение c) судебный приказ d) судебное дело, иск e) право справедливости f) вызов в суд, судебная повестка g) свидетельское показание h) пледирование, заявление оснований иска i) перекрестный допрос j) общее право

TASK 6. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.