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Chapter 1



A. “Civil” procedure vs. “criminal” procedure: “Civil” procedure refers to the rules of litigation for “civil” actions. Civil actions are best defined by contrasting them to “criminal” proceedings. In a criminal proceeding, the state is a party, and is asserting that an individual has committed a crime requiring punishment. In a civil action, by contrast, there is no assertion that the defendant has committed a crime. Instead, one private party (the plaintiff) has brought the suit, and is asserting that the other private party (the defendant) has wronged the plaintiff. Typically, the plaintiff in a private civil action is seeking money damages; however, the plaintiff may also be seeking “equitable” relief, such as an injunction to prevent the defendant from doing something.

Example 1 (money damages): P and D are in an automobile accident. P sues D for $30,000 for personal injury. This is a civil action of the “money damages” type. If P wins, he will get a judgment from the court. This judgment will entitle P to collect (assuming the judgment is for the full amount sought) $30,000 from D. If D does not pay promptly, P will be able to use the state’s judgment-collection mechanisms, such as a sheriff’s auction, to forcibly collect the money from D.

Example 2 (equitable relief): As part of P’s purchase of D’s business, D agrees not to start up a competing business within a five-mile radius for five years. D violates the agreement, and opens up a competing business. P sues D to enforce the non-compete. Here, P’s action is an “equitable” action, for an injunction. That is, P is not asking principally for money damages (though he may ask for these as well). Instead, he is asking the court to order D not to do something, namely, carry on the new, competing, business. An action for an injunction is known as an “equitable” rather than “legal” action, because, historically, injunctions were the sort of relief granted by courts of “equity” as opposed to courts of “law.”

B. Two court systems: There are two entirely distinct court systems in the U.S.

1. State courts: First is the system of state courts. Each state has its own system of courts. In a typical state, courts which can entertain civil proceedings are likely to include: (1) small claims courts, which are typically limited to suits seeking no more than a certain dollar amount, say $5,000; (2) courts of general jurisdiction, in which civil trials are held without any limit on the amount being sought; (3) an intermediate appeals court, to which anyone who loses a verdict in the general trial court has a right of appeal; and (4) a highest state court (typically called a “Supreme” court, but bearing a different name in certain states, such as the “Court of Appeals” in New York). In many states, there is no automatic right of appeal to the highest state court, since the litigant has already had an appeal “of right” to the intermediate appeals court; instead, it is up to the state’s highest court to decide which requests for appeal it will accept.

a. Appeal to U.S. Supreme Court: The losing litigant in a state court proceeding does not have an automatic right to appeal to the U.S. Supreme Court. In brief, the Supreme Court may only hear appeals from state court judgments where the state court has decided a federal question. For more about this, see infra, p. 320.

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