the american civil trial in outline
TRANSCRIPT
TWENTY-SIX
The American Civil Trial in Outline
T he American adversary system of civil procedure is probably bea:
known than any other to both lawyers and nonlawyers across C=
globe. Depicted in movies and books distributed to audiences worldwi&
the drama of attorney confrontation over the evidence is ubiquitous. --
lawyers from states with civilian and other systems know, the collUJlC'""
law trial is an unusual process, which not only gives the judge litcle c:
no roJe in gathering or sifting the evidence but also leaves the verdl.:
entirely to lay jurors, even in complicated commercial lawsuits. 1 IndeeC...
given the central role of the jury trial as the model for all common ~
litigation-even Iitigation before a judge alone-it is not unfair to sr
that the trial as common lawyers think of it has no counterpart in civiliz:;
procedure at alJ.2 T he process of Iitigation bet\veen private parties in the United Staus
is lengthy and expensive. The more complicated the facts of the dispuce
the more people involved in it, or the Ionger the course of dea~
1 For more on the differcnces, see John H. Langbein, "The German Adnntage in <:n Procedure," 52 U. C lri. L. R ev. 823 (r985).
2 See, on this point, John Henry Mcrryman and David S. Clark, Comparative uuv: Waur
European a~~d Latin Americart Legal Systems, Cases arrd Materials 652 (lndianapolis: Bobbf
Merrill, 1978).
502
THE AMERICAN C I V IL TR IAL IN OUTL INE 503
oerween the parties prior to the dispute, the lengthier and moreexpensive
:he litigation is. The greatest source of this delay and cost is rarely the
mal itselfbut rather tbe prelirninary Stages, during whicb parties are iden
nfied, evidence is gathered, and legal claims are refmed. As a resulr of
such a pretrial effort, however, the parties are often able to reach a ser
clement of their clairns prior to trial, and the vast majority of civil suits,
even though they have been ftled in courts and pursued over several years,
end in a Settlement negotiated between the parties rather than a judgment
decreed by rhe jury or the judge.3
Pretrial senlements, however, depend on the parries being in grearer
[ear of the decree that they might receive from the court than from the
compromise they will have to reach, and this balance is not always pre
dictable. So even if a case never reaches the courtroom, it is usually treated
as if it will, and the entire process is carried out, all according to the law
governing civil Ii tigation.
Civil litigarion is regulated by constitutional provisions, starures, na
oonal and local court rules, and judicial decisions, but the bulk of this
regulation comes from court rules. The rules of civil procedure govern
most questions, although matters of evidence are subject to the rules of
evidence. Most states have adopted these rules, modeling them after the
federal rules. Both types of rules are-like all codes in the United States
subject to considerable hoclies of interpretative judicial precedent. The
conduct of the lawyers in carrying out these rules is also subject to reg
ulation by the courts and the bar, according not only to the rules of
procedure but also to professional Standards of conduct, which are con
sidered in more detail in Chapter Twcnty- Nine. The preparation and conduct of a civil trial are thus highly regulated
and follow a generat pattern, which for our purposes may be seen gen
erally in these steps:
1. Initial lnvestigation
u . Drafting and Service of Pleadings
lll. Preliminary Me tions
IV. Discovery
.l in 2001, only 1.9 percent of all federn! civil cascs reached trial. lndced, of 248,377 civil
cases disposcd of, only J,lt2 wenr ro a jury, and 1,654 went to a judge alone for rrial.
See Federn] Judicial Cascload Srarisrics, March 31, 2002, Tablc C-4 (http://www
. uscourts. gov I cascload2002/ tables/ co4 maro2. pdf).
THE THEORY OF THE COMMON LAW
v. Summary Motions
VI. Pretrial Conference
vn. Jury Selection vm. Trial
IX. Jury lnstruction
x. Verdict and Judgment XI. Post- trial Motions
XII . Appeal
xm. Execution X IV. Settlements and Alternative Dispute Resolution
I. Initial lnvestigation
~ -- -
Although formal civil Iitigation begins with the service of a pleading -
the plaintiff upon the defendant, in a manner of speaking the litiga:r
begins much earlier-when the person, which may be a governmen~
corporation, an individual, or a group, first discusses its problems wid;
lawyers. At that time, the lawyers must Iisten to the problems descrfr
and begin a process of determining whether there is a legal remedy agar.::.
another party that will alleviate their client's problem. This process lL=..: involves careful exam.ination of both the facts and the law involvoo
the client's problem. T he factual research involves the lawyers' making a good f:·üth eE:::-:
not only to deterrnine whether the story told them by their client is a-~
but also to uncover any other relevant facts that they should luve bc::;.
told by their client or should have known, as a matter of common kno,....
edge, if it would affect the legal interests of their clients or their op;--::
nents. This investigation often involves discussions with the potential osponent or the opponent's lawyers.
The legal research includes researching and considering not only \\"h...
doctrines of law might have been violated by the other party but L
what remedies might be available against that party for those violatio=.
The lawyer nmst research many questions to answer the fundamen.:::..
query of what remedy can be had. What are the available jurisdicti
and choices of venue, and which is the most appropriate court to h~
the client's clairns? ls the action timely, neither too late under the sta~
of lirnitations (or moot under the prudential rules) nor too soon to ;:
THE AMER I CAN CIV I L TRIAL IN OUTL I NE 505
ripe? Are there problems of immunity, such as a government might have,
or capacity, such as a deceased person or a child rnight Iack?
T he defenses and Counterclaims the other party might have must also
be considered and researched. Was there a justification or excuse for the
opponent's conduct? Did rhe dient do anything that has given rise to
liability toward the defendant? Will the client be in a better position by
bringing an action or by staying out of court?
The same form of investigation is required whether the lawyer is
learning of ehe problem from a dient who seeks to bring suit (or whom
the lawyer advises to bring suit) or from a party who has been served as
a defendant in a suit. These inquiries must be made before eieher filing
the complaint or fuing the answer.
The question often researched before any other, particularly for new
clients, is whether the lawyer is professionally capable of represent:ing the
matter. The lav.ryer's duty of loyalty to a11 clients forbids representation of
one client against another, unless alJ of the parties involved have been
told of the conflict of representation and luve waived any interest. Even
so, some confiicts will be thought by most la\")'ers to be too important
to be waivable. Besides direct confiicts of interest berween clients opposed
in the same matter, the la\")'Cr may be barred in other cases, such as those
in which the attorney has an economic interest adverse to the clients or
cases in which the lawyer would be expected to represent clients with
confticting interests in different cases.
A further arena of professional concern is one not subject to research
but still one of pewmial inquiry. The la\")'er should have no reason to
believe that the client's claims or defenses are fraudulent or untruthful or
that the dient intends to commit or incite perjury. In such cases, the
lawyer cannot represent the claims in court.
Lawyers too often neglect these investigations, making ehern liable
und er Rule 1 I of the federal rules and most state rules to sanctions, which
can include not only dismissal of the case but also monetary penalties.•
For a variety of political, institutionaJ, and eulemal reasons, judges have
been reluctant to imposc penalties under Rule II, and they have been
particularly reluctant to impose penalties on defendants who present a
frivolaus defcnse in their answer. Still, the mies are there, and in time
they may be more fäirly enforced. Some states have gone further and
• Rule 11 is reprinted and discusscd in Chapccr N inc.
506 THE THEORY OF THE COMMON LAW
made statutory causes of action for frivolous litigation or abuse of legal
process, in which case the jury may award damages against a party who
brings an unjustifiable suit or defense.
li. Drafting and Service of Pleadings
As we saw in Chapter One, the old common law system of writs de
pended upon the form of the initial pleadings ftled in the court. In the
writ system, a plaintiff was required to choose a form of writ that was
both recognized by the law and sufficiently fit the facts for the court to
find that the plaintiff was entitled to the relief required by that writ from
the defendant. The modern rules of pleading are much more flexible, but
they still reflect something of the old pleadings tradition.
In most civil actions, the initial pleading is the complaint. 5 The plaintiff
must state why the court has jurisdiction over its claim, allege sufficient
facts to put the defendant on notice of the allegations of fact and claims
oflaw and equity that are being brought, and ask for the relief the plaintiff
seeks (see Fed. R. Civ. Pro. 8). In federal courts, a complaint arising on
a question of federal law is subject to the "well-pleaded complaint" rule,
according to which the reliance of the claim on the federal Constitution
or a U.S. statute or doctrine must be clearly apparent in the text, or "on the f.1ce" of the complaint.
The complaint must then be ftled in the court and also served upon
the defendant (or defendants), which is done usually by a person handing
the complaint to the defendant, with a summons to appear before the
court in which the complaint was 61ed. The complaint and summons
may be handed to an appropriate agent or employee ofthat person. (Ser
vice on a corporation is usually made by service on an agent.) In some
circumstances, it can be mailed, which is usually clone by certified post,
so that a record of the received mail is returned to the plaintiff. In all
cases, the plaintiff's lav.ryer must see that a record of the service is ftled in the COUrt.
; There are cercain noncriminal actions in America that bcgin with o ther pleadings, such
as actions in admiralty thar begin with a libel, acrions in equicy plcading in some srares, or orhcr unusual actions thar begin wirh a motion, but the vasr majoriry of civil litigarion commenccs with the complainr.
1' in wh
comp
by tho
offili
the n
same
wbid
iegari; lhims
plaiDI
s
(I) dJ
our < plaini
mep .l.!:reac
:m:p l
;z!) p)
me;t
marlt ~ed)
:.o6J 1
c m
TIIE AMERICAN CIV IL TRIAL IN OUT LI NE 507
The defendant has a short time, usually nventy days, to flie an ai!Swer,
in which the defendant adrillts or denies the allegations of the plaintiff's
complaint, and (if the defendant does not want to give ehe relief sougl1t
by the plaintiff) to deny that the plaintiff is enticled to any relief Instead
of flling an answer, the defendant could move to dismiss the complaint. If
the motion fuils, the defendant then must flie its answer. Often, at the
same time the defendant flies its answer, it also ftles affirmative dejenses,
which are defenses that are beyond ehe scope of merely denying the al
legations or claims of the plaintiff. The defendant may also file collnter
claims, which are claims the defendant might have put into its own com
plaint, had the plaintiff not been the first to flie. Some Counterclaims must bc brought at this time or are waived for
ever. These are compulsory counterclain1s, which meet five criteria:
(1) the counterclaim must ex:ist when the suit was fil ed, (2) it has to arise
out of the transaction or occurrence that is the subject matter of the
plaintiff's claim against the defendant, (3) it can be adjudicated wichout
the presence of third parties beyond the court's jurisdiction, (4) it was not
already pending in court in another case, and (5) the plaintiff's suit did
not commence by asserting jurisdiction over property alone but over the
person of the defendant (see Fed. R. C iv. Pro. 1 3). All oeher Counterclaims
are permissive and may be broughe by ehe defendant then or later.
The plaintiff muse then fue an answer to the counterclairns. As with
alJ pleadings and motions, a copy of the answer must be given eo all of
the parties in thc case, as well as ftl ed with the court (or if a motion is
made aloud, it must be on the record made by the court that is eo be
filed). Also, as with the answer by the defendant, a failure by the plaintiff
to ftle the answer may result in a default judgment. If any party fuils to file an answer to a complaine or to counterclaims,
the party that ftled them may move the court for a dejn11/t j11dgment, win
ning them outright, unless the nonfiling party can show a good reason
for not filing an answer or for delay in filing an answer, in which case
the nonflling party will move eo set aside the default judgment and move
forward in ehe case. If an allegaeion is not denied in an answer, ehe court
in mose circumstances may consider thae allegation to be true.
One aspect of this phase of thc trial, the pleading in of third parties,
might occur earlier or later. The rules distinguish the plaintiffs and de
fendants from several forrns of third parties. These distinctions can be a
bit confusing, particularly when there are multiple plaintiffi or multiple
,..,., 0, ~
~ .{,_~ . . . . .·· '
~. . . ' . ~
r- • I 1jVj ~ iJ.; '" . .: ·t .. . . iliii'''-------
)08 TH~ THEORY 0~ THE CQ .\\MON LA\V
defc:nd:mts. In practice, there is ordinarily only one ditference bctwecn a
third party (usuaUy broughr in through service by a dcfendant) and rhe
initial dcfendant, who is bro ught in through service by the plaintiff. AU
othcr ditferences turn on who seeks the remedy from the third party.
A dcfendant mighr bring in, or implcad, a third party to indemni~·
rhe defend:mr if the defendant loses. Or a defendanr might implead a third
party that might also be liable for rhe sarnc conducr for which rhe dcfen
dant has becn sued. so that the third party will be held joinrly liablc and
reduce ehe defendant's liability. A plaintiff may bring in third parties to
share in li:tbili ty or to indemnif)r it against a counte rcbim. Th ird-parry
complaints servcd larer d1an ren days after ftling an answer require the
perrnission of the court. A third parry who emers a case volunt:trily .llld
not by rhe claim of a plaintiff or a dcfendant is an iutcn,euor.
P:trries m:ty also bri ng imerplcader actious. which are :1 cross bctween
a rcgul:lr suir and a rhird-party acrion, according to which rhe plainrin
admits ir owes money ro one of several defcndams, deposirs rhe money
with the coun, and forces the defendants ro sorr out who has rhe bc:st
claim to it (see Fed Rulcs Civ Pro . 22). Furthermore. a plaintifr may crossclaim againsr other plaintiffs, :md a dcfendant may cross-claim against other
dcfendants.
As to multiple parties, rherc are several manners in which multiple
plaintifrs may sue. Thc mosr imponant comrnon form is when different
plaintifE join in a single suir, either rhrough subscribing ro a single com
plaint o r by fliing motions ro join :1 variety of individual actions againsr
a common defendant. Quite famously, a !arge group of plaintifis rnay be
representcd by a singlc plaintitf or smaU group of plaintiflS in a class aaitm.
To be certified, a class must meet four prerequisites: (1) lt is so numcrous
th:njoinder ofallmembers as individuallitiganrs is impracticable, (2) there
are questions oflaw or f.1ct in common among every metnber ofthe class.
(3) rhe chims or defcnses of rhe representative partks an: typical of the
claims or defenses of every membcr of the class, (+) and rhe representatiw
parties will fairly and adcquarely proteer the interests of thc class. lf rhese
prerequisites are met, thc courr may certity the class ro bc represenred if
any of threc justificarions arc mct: A requirernent of separate actions by
each class member mighr Iead to some members' cascs bcing affected by
others or to varying or unfair restdrs in different trials, the defense has
mo re or less :tcted toward them likc a class, or a clas.s acrion would be
mo re 1:-tir or efficient (sce Fcd. R. C iv. Pro. 23).
T I!E AMElliCAN C l V II. TR I AL IN OU I' L I NE 509
Not all states allow dass actions, al though ::~ 11 allow actions by multiple
n:~med plaintiffs. There an: o ther merhods of bringing actions on behalf
of brger groups of unidentified plaintiffs, particubrly rhc COIIIIIIOII _{1111d
cause in equicy, but such actions an:: rare.
III. Preliminary Motions
Often, after the complaint is filcd, c:~ch side (but most ofrcn thc defcnse)
is likely ro nnke a serics of mocions, seeking ro dismiss the case or ar least
Iimit rhc scope of rhc suir. Th~:se morions may rake sevcr:~l forms and
may be designed ro accomplish many ends b~:yond those th:~t appear on
rheir facc. Unfortunatcly, many lawy~:rs file them mercly ro generate ad
diti on:~l hours to bill their d ient or to increase thc costs for thcir oppo
nems. Bur when rhese morions art: used wdl, they are useful not only for
limiting the liability thc dient might f.1ee but also for narrowing the issues
in rhc casc ancl making the work in tht: ncxt stage, discovery, more man
ageable.
One of ehe earliesr mocions in a case is for a srhcd11/i11g order. T his may
be made by the court s11a spo111C, or on its own motion, in ehe absence
of a motion by onc of ehe parties. ln federal courts, ir is ro be entered
\Vithin nint:ty days of the filing of the answer. The scheduling order sets
the Iimits for tht: time during which partics may join other partics and
:unend the pleadings, fi le motions, :md complere discovery, and it ofrcn
sets the datc for a prctrial confcrence. This order may be :~mended fi-om
time to time, but ir sers the pace for rhe procecdings until the pretrial
conference, which is usually set about one month before the rrial date.
Thc most importan t form of preliminary mo tion is ehe morion to
dismiss, which may bc based on procedural or subsrantivc grounds. On
procedural grounds, rhe dcfendant may movc to dismiss thc cast: bccausc
the court Iacks jurisdiction over the subjcct matter of rhe plaintiff's com
plaint or Iacks j urisdiction over the p~:rson of the defendant (even if rherc
is jurisdiction ovcr the claim), because rht: courr is not the proper vcnuc
and :~norher court is, because rhe service of process on the dt:fendant was
ineffective or insufficicnt, or bccausc a nccessary party w:ls not joincd in
the suit (see Fed. R . C iv. Pro. 12) . Or the defcndant may move to dismiss
or to sray proceedings because it is not the appropriate party, the real party
in interest, or because one of thc parties Iacks the capacity to be in court
510 T II E T II EO RY OF T II E COMMON LAW
and muse be representcd by a guardian or next friend (see Fed. R. Ci'
Pro. 17). The defendant makes such moeions, ehe plaineiff may ft1 e ob
jeceions eo the mocions, and eieher or both sides may file wrieten brie~
summarizing the law-the case precedents, rules, and staeutes-support
ing eheir vicws. The court may he:tr oral :trgument, or it may not. l t rher.
rules, and usually a disnüssalunder these grounds does not bar ehe plaino::
from going back to the drawing board and fi ling a new complaim. alrhough it mjght w eil be in a different courr.
Defenses raised at this time include Iack of personal jurisdiction an.:
Iack of valid process (sec Fed. R . Civ. Pro . 12(b)(2) and (4)). To asser.
rhesc defcnses. rhe defendanr is allowed to make a speria/ appeamnre. o:
appcar only for the purpese of arguing that th t: courr Iacks the jurisdicrio::.
neccssar y to force the defcndanr to appear. A fäilurc to raise the issu.: 1n
an answer or responsive pleading or by mocion will rnean chat rhes.: de
fenscs arc waivcd.
There an: several diseinet bases on which Iack of personal jurisdicrio::.
may be argut:d, but each manifeses the proposieions thae the coun's juru
diction over the defendant and ovcr rhe causc of action musr be prO\·e.:
by ehe plaintiff. M oreovcr, ehe plaimiff must provc, 6rst, that the cou::
has been granred jurisdiction over ehe dcfendanr by an appropriate sraru;~
or, in rare instances, by the judicial precedents appropriate for that cou::
or by the inherent powers of the courr and, second, that any gram o:
jurisdiction that does apply does not violatc the constiwtional limits o:
procedural due process of law.
Dctermjning whether valid process has been made is no t always -
Straightforward inquiry of whether ehe rules were obscrved for service b·
the appropriaee personnel in the appropriate manner. To be valid. th~
service must be made witrun the Iimits of ehe statute governing senic::
which usually has :1 geographic Iimitation. Fo r state statlltes, service o
nonrcsidems is a tradirional difficulty, turning on interprctations of th::state " long-arm" statute, which usually allows service w irhin a zone c/
one hundred miles around ehe courrhouse, rcgardlcss of state line . o::.
anyone who committed a tort in the state, entered a contract to be pe:-
formed there, or is rcgistcred for service of process through an agenc eher::'
Applications of ehe service statute eben raise the underlying question o:
jurisdiction- have the laws of the stace asserced jurisdiction over the de
fendanc for claims such as this? If thc laws havc not, service is ineffecrin~
but therc would also bt: no personal jurisdiction in ehe court. These a:~
THE AMERICAN C IVII. TRIAL IN OUTUNE )II
;;o: perfectly coordinare, in that a defendant might have waived rhe Iimit
~ jurisdiction in certain matters but still not have waived the Iimits on
-C';ce.
A defendant in state court may still move to dismiss the complaint,
~en if the jurisdictional statute is applied to allow service (see Fed. R.
L·••. Pro. 12(b)(2)). The statute cannot exceed the federal consrirutional
.=Urs of due process, in which a foreign defendanr must have sufficienr
-:runimum contacts" with a j urisdiction that enforcing a remedy there
~ould not offend "traditional notions of fair play and substantial justice."
5« Chapter Thirteen for further elaboration of the constitutional issues.
On substantive grounds, the defendant moves to dismiss the com
~:.llnr, under the weli-known subpart, Rule 12(b)(6), for "f.·lilure to state
~ claim upon which rclief can be granted." This is an argument that the
::..-:ms described in the complaint arc just not enough to warrant the relief
:;oughr, that evcn if the plaintiff could provc all it has argued, the plaintiff
.:armot win whar it seeks from the dcfendant. Thc parties argue this mo
=.on. and the court might grant it either with leavc to the plaintiff to
.z:nend the complaint or with prejudice, in which case the plaintiff has
:D5t for good. A 12(b)(6) motion is sometimes heard on not just the
~tements made in the pleadings but with reference to information that
!5 riJed or presented from sources besides the complaint and the answer.
~ rhese cases, the motion is treated as a motion Jor j11dgment 011 the pleadings,
which is like a motion for summary judgment.
One other motion somerimes filed at this stage is a motio11 for nrore
~,i11iie statement. A parry may ask for either a complaint or a counterclaim
:o be clarified, or written more clearly, if it is "so vague or ambiguous
:h.lc a party cannot reasonably be required to frame a responsive pleading."
~e motion must describe not only the defects but also the manner of
O::erails desired. A successful motion that is not obeyed can Iead to the
:ourt's st?king the vague pleading from the record.
Another form of preliminary motion is a motion fo r pretrial remedies,
such as an attachme11i or replevin order securing or seizing property in
Jispute or a preliminary it~jrmctio11 (PI) enjoining the defendant from con
.:iucc the plaintiff seeks to prevent at tbe close of the case. A te111porary
resrrainilrg order (TRO) is an emergency order enjoining the defendanr
:=-om such conduct, entered so quickly that the defendant is not told of
H beforc the hearing, but these are usually valid for only a few days and
will be vacatcd unless a hearing with notice replaces the TRO with a PI.
512 Tll E 'f l! EORY OF T H E CO J\-tM ON LAW
IV. Discovery
Ofren rhe Iongest period of trial prcpar:Jtion is the discovery phase. In
the common bw system, discovery is managed almost entircly by thc
counsel for the parties. The judge acts only as an arbiter or refcree whcn
counsel disagree over some matter, such :ts the applic:ttion of a rule to a
requcst for sorne evidence or a refusal to providc it. Tbc rnanagement
:md inquiry-by judgcs in the civilian system at rhis srage is very rare
indced in the conur1on law.
As in criminal procedure, rhe basic purpose of discovery is to cnsure
rhat both sides l1ave adequarc knowledge of thc evidcnce known to the
orher. When thc rules of discovery are followcd, both sides are able ro
prcpare their cascs with fuU knowlcdge of rhe orher's case. There arc no
surprises. Even more than in a criminal procedure, discovcry is likcly ro
be fa r broader in scope than rhe limits of admissibility; in other words.
each party is enrirled to learn mon.: from the other than would be allowed
to be pn:sented in court. In part, this difference in scope rcsults from the
nccd to cvaluarc evidence before determining what is :~dmissib l e . In part.
this diffcrence rcsults direcdy from diffcrences in thc rules, which some
times rcAect policies other than those of :~cquiting the greatest scope of
evidence possible.
Unscrupulous lawyers and clients oftcn seek to hidc damaging infor
mation, or dump grear volumes of disrr:~cting evidencc, in order ro in
crease rhe costs and inconvenience to their opponcnts. T he courts, despirc
Rules 1 1 and 37, usu:tlly do a poor job of monirering such misbehavior.
Lawyers who v:~lue thcir reputations and professioml integriry, howcver.
:~re careful ro require their clicnts to conform to their discovcry obliga
tions.
Discovery takes three major fornlS: written questions, caUcd iwerrog
ntm·ies; requests for ehe production of documents :~nd rangiblc evidcnce:
:~nd deposirions, which are the recorded questioning of witncsses by law
yers. lnterrogatories :trc lim.itcd to cwenty-five questions, unlcss the courr
allows more. Depositions may be based on writtcn qucstions providcd in
advance or on oral qucstions alonc.
Therc are lcss-known forms. Requesrs for ad111issious seek rhe Opponent
to adm.it to f.1cts or chlims that, if denied but later proved, may give rise
to sanctions. Mcdical and psychiatric ex:~ms may be ordered for a variety
of re:~sons. Land m:~y be inspccted. Third partics may be subpoenaed. Bur
T H E AMER I C:AN C I V I L TR I AL I N OUTL I NE 513
most discovcry amounts to voU~:ys of interrogatories and production re
quem and long hours spcnt in depositions.
V Summary Motions
Following discover y, cither party often moves for judgment, either as a
Jrtdglllellt 011 thc plcadings, which is rather more like a motion to dismiss
but incorpor:nes some information outside the pkadings (see Fed. R . C iv.
Pro. 13), or as a motion for 511111111ary judgnrt·nt, which is allowable aftcr
discovery if the case can be decided solely on undisputed fucts (sce Fed.
R. C iv. Pro. 56). After such motions, particularly if there are sufficient
stipulations of facrs between the parties, thc court might hear :~rgument.s
on th<: law alonc, and it can render judgmcnt wichout a trial. Most such
motions arc for summary judgment. and ir is up ro the moving party to
provc that there is no dispure over any f.1crs that ar~: germane, or material
ro thc issucs berwcen thc partics. and to prove rhat the moving party is
cnti tlcd to judgmcnt as a matter of law. Summary judgment is to be
denied if thcre is a "genuine issue as to any material fucr." Although
summary judgment might not bc granted to decidc a whole cas<:, a party
may move for, or a court may grant, partial summary judgment to reduce
thc number of claims subjcct to trial.
VI. Pretrial Conference
Alrhough it is a rather informal affair in many srate courts, in federal courts
the prerrial confcrencc is a formal cliscussion of the case prior to trial,
benwen :~IJ the attorncys and the judge. Prior to thc conferencc. each
side prepares draft pretrial o rders, placing the arb'1.uncnt.s, evidence, :md
results in rhe light they believc mosr f.wors their side of rhe case. Du ring
the confercnce, motions to cxcludc certain argumenrs or evidence are
often argucd and resolvcd.
When both sides are v.re ll prepared for the confercnce and both arc
behaving professionally, consid~:rablc amounts of the cvidence may bc
stipulated as appropriatc for admission. Evcn somc legal conclusions may
be stipul:lted to bc determined according to facrs yet to be found. The
cvidence that will be introduced, including the witncsses, is finalized.
~ ~
a D
~ a
514 TliE T II EO !lY 0 1' TIIE COMMON LAW
Despite ehe many television shows, movies, and novcls thac turn c.c::
ehe Iast-minute introduction of a surprise witness or of a bic of mysre::
ous evidence, ic is very hard to introducc a witness or ocher evider.~
that was not produced during discovery and recordcd in ehe pretrial o:der. T he party affering such evidence must show that ehe delay in pr..
duction w:1s excus:1ble, and even then ehe court might not allow ir ir.::..
the record.
VII. J ury Selection
Notall rrials arc by jury. Ivbny statt: civil actions are before a judge :1lo::::..
:1nd by long cuscom, civiJ acrions in equity rather chan bw arc tricd b' •
judgc alone. Cerrain spccialized actions in ehe federal courts, mai;:..
voring-rights accions, are tried by three-j udge courts wichout a jury. L..s:.
the partics may both agrce to have a judge hear the case as trier of i;..::;
as wcll as of law, alchough ehe judge might still order trial before a j u_:T
Indecd, most civil rrials are before a judgc and a jury, and jury selecoa:.
is ehe first scep of the crial ieself Most civil juries now luve six memlx-:>..
alrhough thcy may be as !arge as the traditional twelve.
The process of jury selecrion, or jury 11oir dire, begins with ehe sek:
tion of a ''c11irc, o r jury pool. This is usually a !arge group of peor~
summoned by thc dcrk of ehe court from a Iist randomly dr:~wn fro=.
ehe rolls of registercd votcrs living in ehe courr's jurisdiction. T hus, fede:-L..
courcs, wich jurisdiction over a !arger area, usually havc :1 more geograr.:,...
ically dispersed vc:nirc: than do state coum.
Membcrs of the IICIIirc are then examined. This usually takes the tor= of a serics of questions, asked by the law-yers for both sides, as weil as ::
ehe judge. Following thc answers to chese quescions, the judge sele.:::;
jurors from thc 11C11ire. Attorncys for each sidc may challenge poreneil
jurors prior to selcction. eieher challenging thcm percmptorily, in ,,·lu:.:.
case thc challenging attorncy need not givc :1 re:tson (:-J!chough case :..
makcs clear ehat these ch:tllenges may not be used to eliminace jurors c.::
ehe basis of race or gender), or for cause, such :ts appearing to haw ..:::.
interest in the case or lacking capacity to scrvc."
'' ln fcd..:ral coun . .:8 U .S.C. § 1870 givcs cach sidc three percmptory chaUcnge~.
T II E AMIHUCAN C I V IL T RI AL IN OUTLINE )15
VIII. Trial
After a jury is impaneled, the tria1 proceeds in four main Stages: opening
statcmcnts, plaintitf 's cvidcnce, dcfense evidence, and closing arguments.
Each is usually give;:n a parrietdar number of days, half-days, o r hours in
the pretrial ordcr.
In the opening Statements, each side attempts to explain tO ehe j urors
what thc case is about. Each side argues its theory of w ho has sued whom ,
what thc evidence is, and why their side is entitled to win under the
appropriate standards of law. T he plai ntitf goes fi rst, surmnarizing ehe ev
idence that shows the plaintiff is enritled to rclief, as weil as ehe reasons
that relief is possible undcr the law. The dcfendant goes second, arguing
not only that the plaintifr cannor prove its case but also that thae are f.1c rs
to support any affirmative dcfenses o r counterclaims that are o ffered.
The prescntation of cvidencc is m:ll1aged almost exclusively by coun
sel. Civilian lawycrs will find thc degree of attorney control over the case,
and of judicial noninterfcrence, to be nearly total. T his is nor, however,
always the case, and particularly when a judge is acting as a rrier of fäct,
as in an equity case, the judge may ask quite a few quesrions dircctly of
a wimcss or inspecr tangible e;:vidence wich personal care. Alchough such
judicial interrogation is possible in a jur y trial, it is rare indeed.
Evidence includcs the produccion of documems and tangible c\·i
dence, :ts weil as the cxanu nation of witnesses. AJI evidence;: is subject to
the rulcs of evidence, which dercrmine not only what evidence may be
inrroduced and what not but also how cvidcncc is to be used and what
must bc proved for a court to treat evidence as authcntic. The undcrlying
doctrincs of evidence are that all evidence relevant to the matter is pre
sumptivdy allowed, chat evidencc that is irrelevant is not allowed, and
thac all cvidence is subject to a controlling qucstion of whether it is prone
to help the tinder of fäct cstablish the truth of the matter.
T hc plaintiff may offer witnesses, asking w itnesscs f.worable to its side
gencral questions to tell what they know of the case. The defendant may
cross-exam ine them with more l e:~d i ng qucstions. (In the defendant's pre;:
sentacion of evidence, or if either calls hostile witncsses, these roles are
revcrsed .) In most situations, rhe evidence of :l wirness is entirely oral,
and rhere is no equivalent to rhe civilian "articles of proof." The cxcep
tion, however, is a pro.ffer, in which the lawyer who seeks ro luve some
516 THE THEORY OF T H E COMMON LAW
testimony or other evidence put in the record over the objection of an
Opponent may, out of the hearing of the j ury, summarize that testimony
or evidence to allow the judge to rule on its adrnissibility. At the end of the plaintiff's case, the defense often moves to dismiss
the case by granting a directed verdict. The defense then argues that the
plaintiff has not proved the case weil enough for there to be any way a
reasonable jury could fmd the defendant liable. If the court grants that
motion, the case ends, the defense puts on no evidence, and the j ury is
disrnissed. But it is rare for such motions to be granted, and they are
usually denied or held under advisement. T he defense then puts on its
case, including often recalling many of the same witnesses called by the
plaintiff. At the close of the evidence, the defense again moves for a
directed verdict, usually wich the same results as before.7
Each side then presents its closing arguments- ehe plaintiff, who bears
the burden to persuade ehe jury, usually going last. Following closing
arguments, each side customarily moves again for judgment as a matter
of law (which is required if the attorney will later move for a judgmenc
notwithstanding the verdict), and these motions are usually denied.
IX. Jury lnstruction
One of the mosr important aspects of the common law trial is the instruc
tion of the jury. Most instructions are provided by the attorneys to the
judge, and the attorneys usually draft instructions that place the law or
the evidence in the light most favorable to their side. The judge reads
through the proposed instructions and may add instructions eieher drafted
in chambers or from pattern books of instructions. Each lawyer may ob
ject to particular instructions, usually before they are read to the jury but
7 Alrhough rhis repeat of a failed morion might seem fruitless, ir is requircd by the srruc
turc: of Rute 50, wh ich makes it nccessary if the defense intends to appeal on rhe basis
of insufficiency of the evidcnce. Rule so(a) motions for dirccted verdicr at the closc of
a plaintiff's evidence arc not the same as Rule 50(a) motions for insufficient evidcnce ar rhe close of trial. Metions ar rhe close of all thc evidence are required under R ule
50(3) for appeal o n rhe grounds of insufficicnt evidence. Professor Carlton Bailey, my
colleaguc in Arkansas, has been kind cnough to share his distress at ruling on quire a
few disciplinary proceedings of lawycrs who C1iled ro make the fmal motion, rh inking
thcy had preserved rhe issuc in the earlier motion bur negligcnrly sacrificing the appellare
righrs of rheir clients.-SS
ro
t.b [()
e
e
c
Cl
SI
(
Lr.
pct=· I
~ i:::=::=
r::::;:::.:-
;::;!
~ c=
~
L.......:.. w;;,;.:-
.. ..... -_ tT :r::,-
r c-.x-
~.~
i: F.~~
~-=-·
~· _"'"=_ .•
~.::..:.:
THE AMiiiUCAN C l V II. I RIAl IN OU riiNE 5 17
ahvays out of the hearing of thc jury (sec Fed. R. Civ. Pro. 51). The siele
rhat loses m:~y not bter appe:~l from a poor instruction if it did not object
to it at rhis time. T he resule is a Iist of instructions to the jury ehat derail
their tasks in gent:r:1l and then ask specific quesrions necessary for them
to n:ach a verdiCl.
The instructions usually take rhree for ms. First are general instruc
tions, such as the obligation to act unanimously, ro ekct a forcman, and
to base their dc:cision solely on the evidence rhc:y heard in ehe courrroom
and not on prior imprcssions or on extraneous f.-l cwrs such as rhe r:~ ce or
wealth of thc parries. ln these instrucrions, ehe jury will be usually told
about thc burden of pcrsuasion, which ordinarily rc::srs wich ehe pbimi fT;
ehe plain titr must provc ehe case, and if the jurors rcmain unpersuadcd by
eieher argumcnt, thc::y should votc:: for ehe defendam. (The dl.:fensc::, how
cver, has the burden of persuasion for its counterclaims, as wcU as for
certain afii.rn1ative defenses . ~) The jurors will :.~!so be told of ehe burden
of proof, \vhich in civil cases requires the parry wirh rhe burden of per
suasion to prove its case to a given Ievel of certainry. Usually ehis Ievel is
:1 "prepondc::r:mce of the evidence," according ro which rhe evidencc:: must
bc at least more th:.~n half\v:.~y persuasive::. For intentional rorts and orher
deliberate wrongful acrs, such as brcach of a fiduciary dury, rhe plainriff'
must prove the case ro a higher Ievel of confidcnce, prcscnting a casc.
including the defcnse's argument, th:lt is clear :md convinci ng. lnstructions
also derail rhe elcments of the pending claims ar law, usually dcfining rhc
terms nccessary ro understand the parrietdar claims and dcfenscs. Last arc
the specific insrructions to detcrmine wherher rhe f.1cts as allcged havc
been proved sufficienrly ro support ehe claims o r the defenses.
T he fina l detcrmination of the case then rests with thc jury. Unlikc
ehe civilian system. rhe jury is lefr to decide how much credibiliry ro
assign ro all witncsses and cvidcnce. Thcre arc:: no irrcbuttable presump
tions in the common law. T he jury must decide for itsclf if the cvid~.:ncc
is sufficicnt to mect thc st:lndard of proof for the plaineiff's claims, :ts weil
as for thc defendant's :~ffirmative defenses or countcrclaims.
' T hert• ;Ire occa<ions whcn rhc burdt'n of pcr<uasion Jll ,lY shift trom thc pbimifl' to thc
dcfentbm, >uch as wht·n a pbimiffh.1s dcmonstr:.ned .1 prim.l facic casc 1n cc:ruin ntJttel'\,
afrer which the ddend.mr is rcquircd to provc a dcfcme. tlur mually the pl.1imifl'reraim
thc burdt•n to provc the whole ca~e.
518 THE T HEORY OF THE COMMON LAW
X. Verdict and Judgment
In most states and in the federal courts, the jury must reach a verdict that
all of the members agree upon. Juries usually are asked to bring in general
verdicts, such as whether a defendant is liable to the plaintiff, or how
many dollars of harm a plaintiff has suffered that must be compensated
by the defendant. A jury may, however, be asked to answer a list of
questions in a special verdict or in interrogatories (see Fed. R. Civ. Pro. 49).
The jury may then fmd a series of facts, allowing the court then to
determine whether the jury has found sufftcient fäcts to support its general
verdict. If there are inconsistencies, the court may enter the general ver
dict or send the verdicts back to the jury for further consideration.
If a verdict is entered for the plaintiff, the court usually emers a
judgment, decreeing that the defendant must give to the plaintiff the relief
sought. When this is an amount of money in damages, the court usually
enters the dollar amount, subject to interest until it is paid. When it is an
injunction, the court enters an order specifying what the defendant can or cannot do. If the verdict is entered for the defendant, the court enters
an order disrnissing the case. In either case, the losing party may be taxed with court costs, which
can be considerable and include the cost of court reporters, jurors' ex
penses, and set fees of the court or its clerk. In certain rare cases, such as
civil rights actions subject to 42 U.S.C. § 1988, the court awards attorneys'
fees, so that the losing party must pay the winning party's lav,')'ers' fees,
subject to court approval.
XI. Post-trial Motions
The end of the trial is hardly the end of the case. Three later phases may
weil take as much or more time as the preparation and trial itself. The
f1fSt of these is usually expeditious- the filing and resolution of post-trial
rnotions. The other two may be much more difficult-appeal, if one is
taken, and execution of judgment, if there is resistance by the defense. Post-trial motions are usually made by the losing party. The most
powerful is a reguest for a judgment notwithstanding the JJerdict, or JNOV
("nov" from no11 obstante veridicto), in which the losing side reguests the
judge to set aside the jury verdict and grant it judgment anyway. The
court g
reachec
Slightl)
there is
eviden'
new tri Ül
rather
tbe juc
it, or
substar
arise 6
develo
discov
have c
has <fu
party.
tecbni
judgrr. if it i!
applic the ju
1 for at
verdi<
mone
awarc
accor
a defi QQQ I
Fede1
for n
xn.
THE ili'viERICAN C IVI L TRIAL IN OUTLINE 519
court grants this only if it determines that no reasonable jury could have
reached rhe verdict rendered, and it is rare for such a morion to be granted.
Slightly rnore likely is a mocion for a new criai, which is parcicularly used if
there is newly discovercd cvidence not presented co rhe jury or if there is
evidence of injustice restdring from some error during rrial. Motions for
new tri als must be made within ten days of the entry ofjudgn1ent.
Other motions request a moderation or suspension of rhe judgment
rather than its reversal. Motions may be brought fo r up co a year after
the judgment for alterarion of a judgment if there is a clerical misrake in
it, or the whole judgment may be suspended or vacaced if there is a
substantive mistake (see Fed. R. Civ. Pro. 6o) . Substantive mistake may
arise from actual mistake, inadvercence, surprise, or excusable neglect in
developing the moving parry's case; if the moving party has found newly
discovered evidence that by due diligence thc moving party could not
have discovered wiehin ten days of the judgment; or if the moving parry
has discovered fraud, misrepresentarion, or orher misconduct of an adverse
parry. The judgment may also be suspended o r vacated if it has become
technically void; if it has been satisfied, released, or discharged; if a prior
judgment upon \.vhicb it is based has been reversed or otherwise vacated;
if ir is no Ionger equitable that the judgrnent should have prospective
application; or for any other reason j ustifying relief fron1 rhe operation of
the judgment.
Two continuing common law motions in the state courts are motions
for addiwr or remittitur. A plaintiff may move for reconsideration of a
verdict or judgment by the court to increase :.1n award of damages or
money in restitution by moving for additur, :.1rguing that the ;unount
awarded either was mistakcnly written or calculated or was unjustly low
according to the orher elements of the evidence or the verdicr. Likewise,
a defendant may move for reconsideration and remittirur, which is a mo
tion on similar grounds to reduce the amount awarded to the plaintiff
Federal courts allow actions for remittitur but usually grant only a motion
for new trial rather than additur (see Fed. R. Civ. Pr. 59 and 6o).
XII. Appeal
After the usual post- trial motions, it is quite likely that the losing parry
will appeal the judgment against it to a lügher court, usually an inter-
520 THE THEORY OF THE COMMON LAW
mediate court of appeals. In the federal system, most appeals are brought
first in one of the circuit courts of the U.S. Court of Appeals. Appeals
are usually governed by separate rules of procedure, such as the Federal
Rules of Appellare Procedure (FRAP), as weil as by the local rules of
both the trial court and the appellate court.
The appellant takes the appeal, fust by paying a fee and ftling a notice
of appeal with the trial court clerk and with opposing counsel within thirty
days of the entry of judgment or of the resolution of the last posttrial
motion. Other parties wishing to appeal must ftle their notices in an
additional fourteen days. The notice of appeal must specify the party or
parties taking the appeal by naming each one or by listing them as "all plaintiffs," "the defendants," or "all defendants except X." The notice
must designate the judgment, order, or part of a judgment or order that
is being appealed, and it must name the court to which the appeal is
taken. The clerk mails the notice to all the lawyers on the record, al
though most lawyers do so as a courtesy, and they must do so if they seek
to stay operation of the judgment dur:ing the appeal. Upon ftling a notice
of appeal, the appellant must pay the district clerk all required fees. The
district clerk receives the appellate docket fee on behalf of the court of
appeals.
The trial court frequently requires the appellant to ftle a bond or
provide some other secur:ity to ensure payment of costs on appeal. The
appellant usually moves to stay the Operation of the judgment during the
appeal, which is in the discretion of the trial court to grant. If it is stayed,
many courts require the ftling of a bond if the appellant has been ordered
to pay damages, the bond securing payment of the damages ifthe appeal does not succeed.
Once an appeal has been ftled, the clerk transmies the record, which
includes the original papers and exhibits ftled in the trial court, any tran
scripts of proceedings, and a certified copy of the docket sheet. Preparing the trial transcript is · usually quite time-consuming and costly and is paid
for by the appellant.
Once the record reaches the appellate court, the case is docketed,
and the appellant flies a written brief. The brief first states the issues
the particular errors of law or rulings against the great weight of the
evidence-on which the appellant desires the appeals court to reverse the
trial court. The br:ief next usually sunm1ar:izes the facts and procedural
history of the case, presents arguments in support of its · argument of the
THE AMF.R I CAN C I V I L T R I Al. II' OUTLINE 521
issues, and then asks e ither for the judgmcnt below to be overmled, re
versed, and rcm:mded to thc trial court for more work or for entry of
judgment for thc appelbnt. If the appellee timcly filed its own notice of
appeal, when it fih:s its reply bricf arguing against the appellant's points,
it may also raisc issues of its own in rross-appeal. The appellant then may
filc a rebrmal briif to ehe reply to its brief, as weil as a reply to any argu
mcnts made on cross-appeal. Thc appdlee rnay thcn fil e a rebuttal to
replics to its cross-appeal, but by this time, few peoplc arc paying attention
tO thc parties anymorc.
The courr then dccides wherher to hear the lawycrs in oral argumcnt
on the appeal. This is conunon in srarc courts and rare in federal court.
One of the most important proccdural requirements on appe:tl has
dr:tmatic substantive effects-the st:tndards of review. Unbkc most civilian
systems, thc appell:lte court in the common law system docs not hear thc
whole case de rrcwo.'' Only qucstions of l:nv are subject to such review
wichout regard to the decision made in the trial court. Other questions,
such as \vhether thc evidence was sufficient to support a \'erdict, are likely
to be limired by dcference to a jury. Still orhers, such as whethcr a par
tictllar witness was qualified to tcsri fy. are limited by deference to the
so und discretion of thc trial j udge. Ncither form of defcrcnce is unlim.ited,
and thc appellate courts reverse if rhcrc is "manifest cvidence of a clear
error. " "'
Thc decisions of appeals courrs arc usually handed down by pancls
of three, sometimes with the concurrencc of orher membcrs ofthat court,
t:ven though they only read the opinion and did not considcr the evidencc
or argument.
X II I. Execurion
In many cases, winning the judgmcnt is not enough. The pbintiff (or the
dcfcndant pursuing a counrerclaim) who 'vvins rclicf usu::tlly drafts the
judgment that rhc courr enrers. Thc losing party, however, quite fre
quently anempt~ to dclay or avoid doing what the court has ordercd.
·• Peter Gonwald, "Civil Procedure Rl'forrn in Germany," 45 Am.). Comp. L. 753 . 761
(1997). 1" See Steven Childrc~~ and Martha S. Davi~. Fi•danl Srnndnrds of nmi<'"' (2d ed) (Salem,
NH: Buttcrwonh. 1992).
522 THE THEORY OF TIIE CO MMON I.AW
If the court has entered an injunction and the parry enjoined violate5
the injunction, thcn the winning party moves the court for a heari11g r.:
shorv cause, at which the losing party may be held in comempt of coun.
Contempt, as we discussed in C haptcr Eleven, may include damages.
fines, or incarceration.
I f the court has entered an o rder for damages, it is ehe responsibiliry
of the losing parry co pay thc damages. lf the losing parry does not do so
in a timely manncr, the winning parry has to seck fo rmal execution ot the o rder. In fcderal court, this is done by seeking a writ oJ excwtio11 under
Rule 69. lt may also be clone by sceking orders o f attaclu11ent ovcr ac
counts or moncy, replevin over goods, or garnislunent of future paymems
from third parties, such as employers or twst accounts. Cerrain fonns or"
properry, such as a primary residence, cannot bc taken, although a Iien
can be flkd against it if ever the properry is sold. Cerrain forms ofincome.
such as payments of death benefits from a life insurance policy, cannot be
g.1rnished. The winning parry may continue to coUect money by thcse
mcthods umil ehe damages and interest are fully satisfied. Other motions
and actions to assist in the coUection include the appointmcnt of a re
ceiver, the ordering of an accouming, and the appointment of special
masters.
XIV. Settlements and Alternative Dispute Resolution
As no ted at the start of this chapter, thc parcics may settle their dispuces
prior to the court's judgment. lndecd, they can settlc their dispures fol
lowing ehe court's j udgmcnt wich a diffen:nt outcome, if they decide co
do so. T he process of nt:gotiating ehe settlemcnt is usuaUy informal, al
though the final settlement is usually subject to judicial approval.
T he most common fo rrn of settlement is through direct ncgoriation
of thc p;mics through their lawycrs. An agrcement reached in this manocr
must be agrced to by the parties, and it must be approvcd by the court.
(Howevcr, the plaintiff has the absolute right to withdraw the complaim
and end a suit any time ptior to thc dcfendant ftling an answer.)
Two forms of settlement may result from work with a third party
mcdiarioll and arbirmtio11. Mediation is the use of a neutral third party to
assist in negotiacion . Arbitration is the use of a third parry by agreement
to decide dispures betwecn the plaimiff and dcfendant , in lieu of hearing
TH E A M !oRI CAN C I V IJ. T RI:\ L I N OUTI. I NE 523
~ dispure in couns. Only if there is a valid contract bctween the partics
_ which they each agree to mediation or arbieraeion can one ~idc compcl
·~ orher ro engagc in ie, alrhough a court may o rder eieher one if it
~.1eves eieher merhod might more efficiently and speedily resolve the
-?Ute. Indeed, judgcs ofte n ace as mediato rs and arbitrators and ch:lir
~Jernent conferences prior to the trial or prior to the judgment.
O ne tool that is available in the federal co urts and rnost state courts
r- encourage Settlement is the <!tfer <?fjudgml'lll (see Fed . R. C iv. Pro. 6R).
Tm days or more prior to trial, a defendant may offer an :mwunt of
c::.:>ney or property to seetle the claims against it. If the plaineifr acccpts
.thin rcn days, rhe clerk emers judgm ent and ends rhe casc . ßut if rhe
-;-.~mriff rcjecrs rhc offer or ignores it, :md then the plaintiff does not win
_ -nore f.worable judgment, rhe plaintiff must pay rhc costs rhe defendant
=.:urred in the case after the making of rhc o ffer.
:Urther R eading
'umerous bo oks dctail the modern Amc rican civil trial. Two that an:: o ften uscd
-:_. umructio n in U .S. law schools are Gcrald M. Stern, Thc Bl!ffalo Creek Disastcr:
:-:'•:•• ehe Surfliltors of One of tht• 11-'<lrst Disasters i11 Coal-Minill,l! History Brol(Rill Suic
~,:.1i11Sf thc Coal Colll)ltllly--A 11d Won (Ncw York: Rando m H ousc, 1 977), and
:~nathan H arr, A Ci•'il Action (N ew Yo rk: Vantagc Uooks, 1996). Harr's book has
_:..., been m ade into a movic of the same namc, but a m ore valuablc.: resourCl' is
:ewi~ A. Grossman, R oben G. Vaughn, and J onathan Harr, A DoWIIICIIfary C om
;.;'lll>ll co a Ci••il Arti011 (New York: Foundation Press. 1999).
T herc an: m <HlY guides to U.S. civil procedurt·, the industry Standard bcing
~e hornbook by J ack H. f,;cdc: nthal, M ary Kay Kane , and Artbur MiUer, Ci11il
-"....-cdurr (3d cd) (Sr. Paul: West Wadsworth. 1999). O n thc law of cvidencc, see
_'l.-k ß. Weinstein and Margarcr A. lkrger, ltVcillstl'ill's Evidc11a' Mallllllf, Studclll
EJuu>ll {6th cd) (N cwark: Manhew lknder. 2003). As to trial practicc itself, again
:.;cre arc many books. Two books popular w ich practi tioners arc Richard C. Wait.:s, Courtroom Psycholog y and 7i·ial Ad.,ocacy (New York: ALM , 2002) , and th~
:1ow- classic Francis L. Wellman , 77u• A re <?(Cross-Examillatioll (4th cd) (New York:
Touchsronc, 1 997).
A growing body o f commc1J t.1 ry has ariscn in comparative civil proccdure,
.:in\·en in part by the ncgotiarions over internarional Standards for pri \·ate l:tw. for
the rccognitio n of forc ign jud).!:n lcnts, and for transnational practice. A good srory
msmg fro m work of thc United Nations C o mmission o n Internatio nal Trad.: