Like all law, civil procedure can be seen as a series of expedients to influence, punish, reward, and authoritatively explain

human behavior. Substantive law typically addresses the behavior of human and artificial members of society. Procedural law, in contrast, addresses a much smaller group: lawyers, as agents for these members, and judges. It is about litigation behavior. Litigation resembles a sports game. Litigants are like playersthe plaintiff initiates the game by suing a defendant. Judges are like umpires. The litigation game in America is remorselessly competitive and is often thought to have winners and losers. Civil procedure represents, in this sense, the rules of the litigation game. Like the rules of many other games, civil procedure is difficult to understand in the abstract. It takes life and meaning from the litigation game itself. Litigation, however, bears a greater burden of justification than lighthearted sport. Most games exist for the pleasure they give to participants or spectators. So long as they are relatively harmless, they are not difficult to justify. In contrast, the litigation game is likely to impose onerous cost upon the parties, courts, and the public. It often has only one enthusiastic player, the plaintiff. As the burden of justification for lawsuits increases in our society, the idea of litigation as a sport becomes more difficult to maintain, and the corresponding search for cost-saving alternatives to formal civil litigation intensifies. On the other hand, the purpose of civil procedure is to make real for societys members the rights secured for them by substantive law. To deny plaintiffs opportunities to become effective players in the litigation game might make those rights meaningless. The plaintiff initiates the civil lawsuit with a pleading, called the complaint, and files a copy with the court. Pleadings set out a litigants factual and legal position in the case. The complaint becomes the first in a series of documents that will make up the official file or record in the case. The plaintiff also requests a sheriff or process server to deliver the complaint to the defendant.

This is accompanied by a summons, a notice from the court officially designating the recipient as a defendant and requiring him to appear and respond in the case within a certain time. The purpose of service of the process and complaint is to give notice to the defendant of the nature of the plaintiffs claim against him. The complaint alleges facts indicating that the defendant has behaved toward the plaintiff in a way entitling him to a judicial remedy such as money damages or an injunction against the defendant. The plaintiff thus tries to allege facts in the complaint that (if proven at trial) will establish a claim or cause of action against the defendant. A cause of action is a legal formula created by substantive law. The story the plaintiff tells through the allegations of his complaint must conform to the elements of that formula. For example, to establish a tort claim for battery, the plaintiff must allege that the defendant deliberately touched him without his consent. When the complaints allegations fail to support any claim, the defendant may immediately move to dismiss the plaintiffs case for failure to state a claim upon which relief can be granted. At the same time, the plaintiff will not be required to prove the truth of facts alleged in the complaint until later. It is enough for the complaint that, in good faith and after prudent investigation by the plaintiffs lawyer, there is reason to believe that it may be possible to prove the facts at trial. The defendant usually also files a pleading, called the answer. It must respond to the complaint by either admitting or denying the plaintiffs factual allegations. The answer may, in addition, contain two other types of material. First, it may contain one or more affirmative defenses. These offer further factual allegations supporting a legal rule capable of nullifying the plaintiffs claim. For example, proof that the defendant touched the plaintiff deliberately and without his consent is insufficient to create a claim for the plaintiff if we add the fact that the defendant acted out of reasonable fear for his safety. In

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Second, the answer provides an opportunity for the defendant to make claims as well. The most common are counterclaims, claims in the answer directed back against the plaintiff. In many disputes (for example, those arising from traffic accidents), each disputant has a claim to make against the other. The disputant who gets to court first becomes the plaintiff and makes his claim in

the complaint. The other disputant makes his claim as a counterclaim in his answer. Defendants may also make claims in the answer against co-parties, called cross-claims. And defendants may claim against one not previously a party for reimbursement, should the defendant be required to pay a judgment in favor of the plaintiff. The defendant may be required to place the latter claim in a separate document, called a third-party complaint. Those against whom counterclaims, cross-claims, or third-party claims are directed must in turn file a responsive pleading, admitting or denying the allegations offered to support the claims made against them. These responsive pleadings may spark a new round of further claims, and so the process may continue. There are other procedural means for enlarging the number of claims and parties. For example, procedural rules permit a claimant to join several claims together against the same opponent, or permit joinder of multiple persons as co-plaintiffs or as co-defendants in the same case. The most ambitious complex litigation device is the class action. The number of persons in the class may be as high as several million. The scale of class-wide damage recoveries can be correspondingly great. Factual investigation is an important pretrial function. It is the search for facts supporting a clients position; lawyers may offer these facts as admissible evidence at trial. A lawyer can obtain many of these facts from cooperative sources (the client or those supportive of the clients interests) or from public records. Other facts, however, may be in the exclusive control of uncooperative sources (the opposing side, those supporting opposing interests, or third parties who do not wish to give the appearance of cooperating with either side). Lawyers will not be able to obtain these facts without judicial assistance. A lawyer becomes eligible for that assistance by serving various types of formal discovery requests on those withholding information, and filing copies of the requests with the court. If the targets of the discovery refuse to respond by disclosing information that they have, the lawyer can then apply for a court order requiring them to respond. Unless those resisting discovery can

demonstrate that the information sought is privileged or factually unimportant to the case, the judge or magistrate will usually compel discovery. Discovery tools include oral depositions (live testimony of persons taken outside the court), interrogatories (written questions directed to such persons), and requests to produce documents or other things. Much discovery, like interrogatories and requests to produce, may only be directed against opposing parties in the case. The most recent discovery development has been the limited use of mandatory disclosure, which requires the parties to automatically disclose certain types of information at the outset of the case. The American emphasis on discovery sets its procedural law apart from that of civil law systems in Europe, Japan, and elsewhere. The differences are most apparent in the far greater latitude permitted for exploration in American discovery, and the extent to which it is attorney-initiated rather than tightly controlled by the judge. The great majority of civil cases never reach trial. Many of these end by the defendants default, the failure to respond, and many end by settlement. This occurs when the opposing parties agree to end the litigation. The plaintiffs incentive is the certainty of receiving some money from the defendant, although less than the amount sought as damages in the complaint. The defendant gives up the possibility of winning the case (whereby the plaintiff would have gotten nothing) in exchange for reduced liability exposure. Both sides save litigation expense. Cases may also end during the pretrial period by some court order. The defendant may succeed in getting the case dismissed for a procedural defect (e.g., want of subject matter jurisdiction). Such dismissals are usually without prejudice. That is, the plaintiff remains free to refile the action in a way curing the defect. Other pretrial dispositions are with prejudice. That is, dismissal precludes re-litigation of the case. For example, the plaintiff or defendant may move for summary judgment upon a showing that there is no contested issue

requiring trial and that the moving party is entitled to judgment as a matter of law. Finally, pretrial conferences will either facilitate settlement or coordinate final preparation of the case for trial. One or two such conferences may be mandatory. Courts use them to encourage parties to explore possibilities for settlement, to ascertain which matters raised in the pleadings will actually be tried in the case, to rule on as many anticipated trial issues as possible, and to set an agenda for the submission of evidence. Like discovery, pretrial conferences operate to minimize mystery and surprise concerning the trial and make that part of the game fairer. See also Criminal Law Principles; Criminal Law Practice Bibliography and More Information about Procedure, Civil: Pretrial

Roger, S. Haydock, David F. Herr, and Jeffery W. Stempel, Fundamentals of Pretrial Litigation, 2d ed., 1992. Geoffrey C. HazardJr., and Michelle Taruffo, American Civil Procedure: An Introduction, 1993. Gene R. Shreve and Peter Raven-Hansen, Understanding Civil Procedure, 2d ed., 1994.

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