SURVEY OF CIVIL PROCEDURE IN THE UNITED STATES
BY HARRY D. MILLER
MEMBER OF THE STATE BAR OF THE STATE OF CALIFORNIA
The legal profession of one country can often receive a certain degree of value from an understanding of the general legal systems in other countries. This is true, for example, in the case of civil procedure. Although the rules of civil procedure are usually specified by statute, the legal profession may learn to appreciate the advantages of their own system from the knowledge of a foreign system, or, when appropriate, it may foster improvements after the benefits of the foreign system. The purpose af this essay is to offer, in general terms, this kind of understanding of civil procedure in the United States. The survey will first outline the court system itself and then a description will be presented of the more important aspects of the procedure to be followed by the attorney in the more typical cases. It is not possible in an article of this size to impart to the reader the intricate and often cumbersome details of the procedure; however, it is hoped that the reader will acquire a limited insight into the American system.
The fifty judicial jurisdictions in the United States (the forty-eightstates, the District of Columbia and the federal court system) will follow similar procedures in the conduct of their civil litigation; the procedures found in the territories outside of the continental United States may be somewhat different because of their unusual status. The essentials of American substantive and procedural law were adopted from the British system as it existed in the eighteenth century. Therefore, every state except Louisiana has adopted the civil law system, but in practice there appears to be little difference between either the substantive or procedural law in Louisiana as contrasted with the other states. Since the eighteenth century legislative modification has developed a procedural system which, in the main, is peculiar to the North American continent.
Each of the forty-eight states and the District of Columbia have a separate and independent judicial organization; there is also a parallel but independent federal court system. Although the details within the fifty jurisdictions may differ, the general procedures, as described below, will be approximately the same. Each jurisdiction is free to adopt whatever procedures that it believes will be best suited to its partieular circumstances. In this manner, separate states will experiment with new innovations in searching for methods to improve their procedural system. This process of independent experi-
mentation develops advancements and improvements which, when found to be successful by the first state, will be adopted in other states as well.
A typical example of a state court system will be found in the state of California. For purposes of state government administration the state is apportioned into counties which can be compared to the Swedish »län». However, for purposes of judicial organization, the state is also divided into Judicial Districts. While the county designations are primarily historical, the Judicial District is formed for the more functional operation of the judicial administration.
The state judiciary is divided into four levels. In a Judicial District with a population of less than 40,000 the lowest level is the Justice Court which considers in an informal manner all minor civil and criminal problems. In a Judicial District with a population over 40,000 the lowest court is the Municipal Court which is sub-divided into various internal divisions. Thus, the Criminal Division will consider minor misdemeanor, traffic, etc., cases, the Juvenile Division will consider criminal offenses by minors, etc. In general, this court will consider most civil litigation involving a total sum of less than 3,000 dollars. Within this level of the system there is also the Small Claims Court which is designed to provide a rapid settlement of all claims involving less than 150 dollars at a minimum of trouble and expense to the parties. In this court the parties may not be represented by an attorney and the only charge is a filing fee of one dollar.
For all major criminal offenses the Municipal Court will hold a preliminary hearing to determine whether it should consider the matter or whether for reasons of efficiency and justice the case should be tried by the Superior Court.
The second level of courts, and in most cases the court of first instance, is called the Superior Court. Generally, any claim involving more than 3,000 dollars and certain other specified types of cases will be initiated here. The Superior Court in every Judicial Districtis divided into several divisions depending upon the subject matter of the litigation. For example, one judge will hear all probate matters (problems involving settlement of estates, guardianship, etc.), several judges will separately hear criminal cases, one judge will decide all matters of law in motion (problems concerning minor procedural issues), and the remaining divisions will be divided among the general civil calender, some of which will preside at jury trials and others at nonjury trials. The Appellate Division of the Superior Court will also entertain appeals from the Municipal or Justice Courts within the Judicial District.
In 37 states the judges of the lower courts are elected by a popularvote; this is the situation in California. In the remaining states they are appointed by the Governor of the state, usually with the advice and consent of the legislature or some other special body. For the two levels of appellate courts the judges in most states are appointed.
The third level of the judiciary is the District Court of Appeal which will decide most cases appealed from the Superior Courts; three judges will consider each appeal.
In a few instances as specified by statute there may be a direct appeal from the Superior Court to the Supreme Court of the state.These are generally cases involving a county as a party to the litigation, certain probate matters, certain equity cases, etc. In such instances the Supreme Court will usually refer the matter back to the District Court of Appeal, but it has the authority to make a final determination in those situations where justice will be served by an immediate and conclusive decision.
The highest state court is the Supreme Court which will have the final jurisdiction over all appeals within the state, except in cases involving a federal question or an issue arising under the Constitution, laws or treaties of the United States; in the latter type of case there is a possibility of a determination of the issue in the Supreme Court of the United States. All other federal courts may be created or abolished within the discretion of the Congress.
There are seven justices sitting on the California Supreme Courtand, adopting the rule usually followed in most American courts, a simple majority will carry a decision. The Supreme Court has no original jurisdiction; each case must be presented on an appeal from a lower court.
The decision on appeal must be limited to issues of law. The facts of the case are finally and conclusively determined by the trial court and a record of the trial court proceedings is certified to the appellate court. When considering the appeal the court will be bound by the facts in the record; the District Court of Appeal and the Supreme Court in nearly all types of cases are not permitted to entertain new evidence or examine witnesses.
It has been estimated that about 90 % of all litigation within the United States will begin and end in the state court system. However, the smaller volume of the federal courts does not reduce their importance. The federal court system is parallel to the state courts but it is completely independent; the rules of procedure, the administration, the determination of jurisdiction, etc., are determined by the Congress of the United States.
The trial court in the federal system is the District Court. There are eighty-four districts within the continental United States together with one district each for Hawaii, Puerto Rico and the District of Columbia. Within each district there is one District Court. There is a similar court established within Alaska, Guam, Panama and the Virgin Isles.
The intermediate federal appellate court is the Court of Appeal. There are presently eleven such courts which entertain appeals from the District Courts, the Federal Trade Commission and the National Labor Relations Board.
The highest court in the land is the United States Supreme Court which is composed of nine justices, including one Chief Justice; this is the only court which is specifically required in the federal constitution.
Other courts within the federal judiciary system will include the Court of Claims and the Tax Court, both of which have a specified
and limited area of jurisdiction. There are also various »legislative courts», such as the National Labor Relations Board, Interstate Commerce Commission, etc., which are not technically within the judiciary but which perform judicial functions.
The jurisdiction of the federal courts is specified in Article III of the United States Constitution. In all other cases not specified therein the state courts will have jurisdiction. The federal jurisdiction, for purposes of convenience, may be classified by either subject matter (admiralty, issues arising under federal statutes, etc.) or by the nature of the parties (when one party is a state, when two parties are from different states, etc.). In many cases the parties will have a choice whether to initiate the litigation within the federalor the state court system; this alternative is available, for example, whenever the parties on opposite sides of the litigation are residents of different states. Thus, assume that A, who is a resident of the State of Nevada, decides to institute legal proceedings on a contract against B, who is a resident of the state of California. Assuming that the appropriate rules of the conflict of laws will permit the action to be instituted in California, A may file his claim in the Superior Court of California. On the other hand, since A and B are residents of different states, A could also initiate the action in the federal District Court in the state of California on the grounds of »diversity of citizenship». In addition, if A should select the state court, B would also have the option of removing the case to the appropriate federal District Court.
As the reader can well imagine, the technical rules of jurisdiction in the federal and state courts are extremely complicated and cannot be discussed more completely here. However, generally there are various reasons why a party might wish to select either a federal or a state court. For example, even though the rule of Erie Ry v. Tompkins requires that the federal courts follow the substantive law of the state where the federal court is located, certain courts develop a reputation for being sympathetic to particular views and for this reason a party may wish to select or avoid a particular court. In addition, there are considerations such as the convenience of location, the comparative time delay, etc., that may effect the determination of the most advantageous court. The selection of the proper court in such cases is only one of the many problems of tactics that the attorney must solve as he progresses with the litigation of the case. Once the decision has been made as to the most advantageous court, either state or federal, and the proceedings have commenced, the parties may not thereafter remove the case to another court; the only exceptions from this general rule are when it is discovered that the court selected does not have the jurisdiction to consider the case or under the familiar doctrine of forum non conveniens.
Reference should be made to the position of Equity jurisdiction in the United States. When the British system of procedure was introduced on the American continent it included the ancient and stereotyped distinction between cases in Law and matters in Equity. During the latter part of the nineteenth century England abolished
this archaic division and today the same court will consider both types of cases. In some states of the United States, however, this division has continued even to the extent of maintaining separate courts for matters in Equity. However, in most states there has been a gradual tendency since the turn of the last century to eliminate any such artificial differences in civil litigation and to provide for a consideration of both types of issues in the same case without anyprocedural distinctions.
As compared to the European continent, the use of written pleadings is probably the most distinctive feature of the procedures common among all United States jurisdictions. The purpose of these written pleadings is twofold. First, they are designed to eliminate frivolous and unimportant issues and to assure that the time of the court is more efficiently expended on the more crucial phases of the dispute. Second, they are intended to completely familiarize both the court and the parties to the areas of disagreement as to both facts and law so that the parties will devote their efforts to the discussion of the more important and determinative issues in the case. There is a continual movement in most jurisdictions to improve and simplify the use of these pleadings in order to achieve these two objectives more effectively.
The true procedure of judicial litigation begins when the client first presents the problem to the attorney. The attorney at this point is not considering the eventuality of court proceedings but is examining the facts as presented by the client and the law in the area of dispute with the view toward an amicable settlement of the problem with the other persons involved. It is only after extensive efforts toward reconciliation and settlement have failed that the attorney should resort to the courts in order to solve the differences between the parties.
After determining that court litigation is inevitable, the attorney representing the complaining party will take steps to initiate the court procedures. The first task will be to research completely the legal problems to determine the validity of the complainant's demand sand to locate adequate authority to justify the desired relief.
Research in the United States will generally be considerably more complicated than the attorney will find in Sweden. For example, the important statutes cannot be located simply in one volume as the Sveriges Rikes Lag; the statutes are more extensive and detailed in most states. California has gathered its legislation together into twenty-four codes, including the Constitution. Many of these codes will involve more than one volume, and each volume will be about one half the size of the Sveriges Rikes Lag. The latest publication of the codes involves ninety-seven such volumes. Each volume will include the section of the statute as enacted or amended, together with collateral references to the legislative history, articles, digests and court decisions relevant to that section. These publications are, as in Sweden, merely private editions of the statutory material. However, in practice the attorney will rarely refer to the original text of the statute.
In addition to the statutory references the attorney must also examine the court decisions that are relevant to the area of dispute; this process will also involve considerable research. All United States jurisdictions recognize the principle of stare decisis. The details of this doctrine cannot be discussed here, but basically this rule requires that a court follow the rules of law announced earlier by the same court, a higher court in the same jurisdiction, or the United States Supreme Court on issues involving a problem of constitutional law or a federal question.
In practice this rule is not as strict as it might first appear. The»rule of law» by which the court is bound is determined by the facts and the decision in the prior case. Thus, a subsequent court is bound only when the facts in the present case are similar to the facts in the earlier case. Therefore, the present court will often »distinguish»the present case from the prior case by stressing a fact which is not common to both. By this practice of distinguishing the court will escape the mandatory effects of the rule. A higher court can always »reject» the earlier decisions of a lower court that would otherwise be determinative on the issue. A court may also »overrule» its own prior decisions. This, of course, is a very rare procedure since a court seldom wishes to emphasize its inconsistencies. The most frequent occurrences of a court overruling its prior decisions will follow a change in the membership of the court.
To discover court decisions that are persuasive on the issues in the prevailing dispute the attorney must attempt to find decisions on similar facts or rules of law which would be applicable to the facts either directly or by analogy. The most persuasive decisions will, of course, be found in the judicial reports of the state where the attorney will present the case. However, because of the common law background of the several states, the decisions from other jurisdictions will also be relevant and will have some degree of persuasive effect; therefore, a thorough job of research will also include a survey of the judicial reports of all forty-nine jurisdictions.
In a complicated case involving many intricate issues this will bea monumental task. For example, for the two appellate levels in California alone there are more than five hundred volumes of judicial decisions. There is a comparable number in the other forty-eight jurisdictions. This portion of the research is simplified to a certain extent through the use of digests and encylopedias. These volumes are also private editions as in Sweden and each will have their individual method of collecting and organizing the relevant material.
A digest will analyze prior decisions according to general subject matter, such as contracts, landlord and tenant, insurance, etc.; within each subject there are numerous sub-topics. The cases concerning each sub-topic are then briefly summarized with a general description of the facts and the specific rule of law as determined by the court. The digest thus provides a time saving method for the attorney permitting him to locate those cases which are relevant to his problem without reading the lengthy opinions in each case. Of course, once the relevant cases are located the attorney must closely scrutinizeand analyze the opinion of the court.
An encyclopedia is sub-divided in a manner similar to the digest but instead of summarizing court decisions it presents a commentary on the law and its ramifications within the particular sub-topic; each statement is thoroughly authenticated by reference to the supporting decisions. The encyclopedia has the advantage that it can offer a general survey of the entire area of dispute and familiarize the attorney with the general material; it then refers to those cases which have considered the particular issues within the current litigation.
One publisher has devised a number system whereby each sub-topic and divisions within the sub-topic are given a specific »keynumber». These numbers are cross referenced in each of the above research materials, enabling the researching attorney to thoroughly exhaust all possible sources merely by locating the appropriate number and examining all references made thereunder. There has been criticism of this system because it tends to induce mechanical research rather than the more careful analytical type of work which is required by the law. However, many practising attorneys favor this system because of its assumed simplification connected to its relative thoroughness.
It must be emphasized, of course, that these publications are merely research aids. They merely assist the researcher in his quest to locate the leading authorities on the particular issues in the litigation. To this extent they are very useful in offering a point of beginning in the tedious work of legal research. However, more important and time consuming research is involved in reading the numerous, and often lengthy, court opinions. They must be thoroughly analyzed before the attorney can rely upon any one case as support for his position in the litigation. A case can easily be lost by an inefficient or careless analysis of the relevant authorities. Unfortunately, the practising attorney may often be prone to sacrifice the thoroughness required by the research under the pressure of a heavy workload.
After thorough research of the problems involved in the case, the attorney for the complainant will prepare the first of the written pleadings known as the complaint. This document will be filed with the clerk of the appropriate court and a copy will be delivered to the person described therein as the defendant. The first two paragraphs of the complaint will identify the parties to the dispute; if either party is a corporation or partnership the date and location of the filing of the organization documents must also be identifjed.
The main portion of the complaint is devoted to an explanation and analysis of the facts in the dispute. In order to prevail the plaintiff must present sufficient facts to justify the relief that he seeks according to the prevailing substantive law. Thus, for example, to state a cause of action in negligence the plaintiff must plead facts that allege an act or failure to act by the defendant which was both the actual and proximate cause of the injuries suffered by the plaintiff. The facts will often be stated in great detail; thus if a contract or promissory note is involved in the case, the plaintiff will generally include this document in its original and complete
wording in the body of the complaint or attach a copy as an appendix.
The last paragraph of the complaint will be the »prayer» wherein the plaintiff will request that the court grant certain specific relief, such as the payment of a specified sum of money. However, since the court is not necessarily bound to grant only the relief requested by the plaintiff, the prayer will also generally include a request for such other relief as the court finds appropriate to the case.
Upon the filing of the complaint by the plaintiff and delivery to the defendant, the defendant is given a specified period of time in which he must prepare another written pleading in response to the complaint. If the defendant should fail to file this response within the time allowed, generally from ten to thirty days, then the plaintiffwill receive a judgment in his favor by default. In practice a default judgment is relatively rare because the attorney for the plaintiff will usually remind the attorney for the defendant to file his pleadings in order to acquire a definite determination of the issues of the case. Otherwise, the default judgment may be appealed by the defendantor it may be set aside for good cause.
The defendant's initial pleading described in the last paragraph will take the form of either a demurrer or an answer. The demurrer is designed to test the legal adequacy of the complaint; thus, it will generally raise issues which may dispose of the litigation other than on the merits of the case. The defendant, in order to raise these issues, will admit all facts pleaded by the plaintiff in his complaint, but the demurrer alleges that even if these facts are accepted the plaintiff has not stated sufficient grounds to entitle him to relief. Thus, for example, the defendant may allege that the court selected by the plaintiff is not empowered to determine the particular type of case, or the defendant may claim that the plaintiff has failed to allege a particular fact which, under the substantive law, is essential to the plaintiff's relief.
If the court agrees with the allegations of the defendant in the demurrer the plaintiff will generally be permitted to amend the complaint in an effort to eliminate the defect. If the demurrer is sustained with leave to amend and the plaintiff is unable to cure the defect this will terminate the litigation; in most jurisdictions this type of decision cannot be appealed. However, if the court should sustain the demurrer without leave to amend, the plaintiff is permitted to take an immediate appeal of this decision to the next higher tribunal.
If the demurrer is overruled, or if it is sustained with leave to amend and the plaintiff is able to cure the defect, the defendant is then permitted to file his answer. The defendant will not be bound by his prior admission of the facts pleaded in the complaint; rather, the defendant will be permitted to deny those facts as alleged in the complaint which he does not believe to be true. The answer is a negative type of pleading in that the defendant is not required to plead any facts affirmatively; the issues in the case can be raised by either specific or general denials of the plaintiff's allegations.
On the other hand, the defendant is permitted to raise affirmative
issues either in defense to the plaintiff's allegations or by separate grounds which entitle him to relief from the plaintiff. The affirmative pleadings by the defendant are called the cross-complaint and the counterclaim; although there are technical distinctions between these two pleadings, generally they will serve to the defendant the same purpose as is served to the plaintiff by the complaint. If the defendant should file either of these two documents, the plaintiff then becomes the defensive party to the issues raised therein; for this purpose theplaintiff is called the cross-defendant, and he must, in turn, file a demurrer or answer to the defendant's pleading.
In the more complicated cases where there are many involved issues the pleadings will continue between the parties in a responsive manner in an attempt to narrow the areas of dispute and thus to simplify the oral argument of the case. Thus, the plaintiff may file a reply to the defendant's answer and the defendant may respond by a rebuttal, followed by a sur-rebuttal by the plaintiff, etc. In most cases, however, the pleadings will end with the filing of the answer.
As a supplement to the above pleadings the parties will file a brief on the substantive law involved in the dispute. Often, as the case progresses new issues of procedural or substantive law will be raised and the court will call for supplemental briefs on these new issues. The brief will merely state the substantive law in the terms understood by the party together with the authority which justifies their analysis. The court, when considering the proper decision in the case, will examine these briefs closely and will often read the more important cases cited by the parties.
Before leaving the discussion of written pleadings, it must be emphasized that the general trend has been to simplify as much as possible the technical requirements for these documents. The purpose of the pleadings is to simplify the process of the oral argument. Previously, it was possible for a party to lose his case merely because he did not adequately comply with some technicality in his preparation of the pleadings; this often led to the result that a party would be denied a claim which was otherwise just for reasons which were not based upon the merits of the case. Today, the courts are very liberal in accepting pleadings which are not in conformity with the intricate rules but which satisfy the general purpose of informing the court and other parties of the facts alleged and the issues in the case.
In improving on this process of simplification and information promoted by the written pleadings, many states have instituted the pre-trial conference in a manner similar to that presently found in Sweden; this innovation is believed by many authorities to be one of the most important modern improvements in the American judicial process.
At this conference a neutral judge and the attorneys representing both litigants will discuss the impending litigation in an informal atmosphere. This is to be contrasted with the Swedish procedure where the same judge generally conduets the pre-trial conference and also the trial itself. The conference in the United States will have
two primary objectives: First, it is thought that by this conference the attorneys can be induced to accept a settlement of their differences without the necessity of a court trial. Second, the parties can discuss those phases of the case which are not crucial to a determination of the issues involved and thereby make concessions to the opponent which will simplify the formal proofs at the trial. Thus, forexample, in a case involving a contract the defendant might concede that the copy of the contract pleaded by the plaintiff is a true and accurate copy, eliminating the requirement that the plaintiff prove during the trial the authenticity of the contract. In a case of negligence the parties might concede that an accident has occurred and that the plaintiff has suffered the injuries as claimed, thus centering the discussion during the trial on the issue of proximate cause.
The judge presiding at the conference will make a report of the developments to the court which will decide the case. Generally, this report will not make any reference to the merits of the case except in that rare instance when one party has appeared to be instigating frivolous litigation or has appeared unreasonably uncooperative.
Prior to the actual date of trial the parties may continue their negotiations for settlement. Because of court congestion the delay period between the filing of the complaint and the trial may extend for as long as two years in the larger cities. It is not uncommon that the parties are unable to arrive at any agreement during this entire period but on the eve of the trial or even in the court room prior to the formal commencement of the trial they will settle the case and preclude the necessity of a time consuming and costly court litigation.
On the commencement of the trial the first procedure will be the selection of the jury. Despite the popular conception on the continent, the jury system is not widely used in civil litigation except in cases involving personal injury liability. It is generally believed that in civil, non-personal injury litigation the facts and the law involved in the case may be too confusing for the lay jury. Thus, if one party believes that a lay jury will be sympathetic to his cause he would seek to have the decision determined by a jury. On the other hand, if the case involves numerous, difficult legal concepts he would waive the jury since the jury probably would not be able to comprehend the issues of the case and there is the danger that the case would be decided on the basis of their emotions rather than upon the legal principles involved. Of course, in the latter situation, the party who has the more favorable impression of the jury's emotions would wish to use the jury. It is not uncommon, however, that the plaintiff in a personal injury case will request a jury because of the opinion that the jury will grant a higher award of damages than the judge. However, even if the plaintiff waives the jury the defendant has the right to demand one. If neither party makes an affirmative request for a jury it is considered waived by the court. In criminal cases the jury is more widely used; in such cases the selection of the jury and conduct of a case being determined by the jury is a very complicated and technical phase of American jurisprudence.
The oral argument of the case in the United States will follow a
procedure very similar to that practiced in Sweden. The plaintiff will have the burden of proof; he must establish by affirmative proof each element of his cause of action in order to succeed in his claims.The defendant need only present a negative argument which will defeat the plaintiff's case. The plaintiff is given the first opportunity to present his witnesses in order to present those facts which he believes necessary for his case. Each witness may be cross examined by the defendant. The same process is followed by the defendant in the examination of his witnesses and the cross examination by the plaintiff.
There are two basic differences between the American and Swedish procedures. The first major distinction is the extensive use of depositions in the United States. Although a comparable procedure is available in Sweden, its use in the United States is considerably more common. In the United States, if a witness will be unavailable on the date of trial, if he lives more than a specified distance from the court making it inconvenient for him to attend the trial, or if it is too expensive for the witness to attend the trial, the party who will present that witness is permitted to introduce his testimony by a written and sworn deposition. The procedure is merely to ask the questions before a court reporter or notary public; the answers given by the witness are recorded. In order to complete a valid and effective deposition the defendant must attend the meeting where the deposition is taken; at that time the defendant will be permitted to ask any questions on cross examination as if the witness were in open court. The witness will swear under oath to the answers as recorded and the recording itself is presented to the court.
The use of the deposition is only one phase of the discovery procedures. This system was initiated and developed within the federal court system and because of the success of this experimentmany states have adopted similar procedures. »Discovery» refers to that process of learning facts and acquiring information held by the opposing party in the litigation or by other third persons. The value of this procedure is not only in the information acquired thereby, but it also aids the party in evaluating the position of his opponent before the trial.
The second major difference in the American procedure is the application of special rules of evidence. Every jurisdiction in the United States has developed very detailed and often confusing rules of evidence. These rules will determine whether certain testimony or other items of evidence will be admitted into the trial for deliberation by the court. Since it is believed that certain specific types of evidence are either prejudicial or are not probative, these rules will exclude this evidence from consideration. The generally acknowledged tests for evaluating the admissibility of evidence are whether it is credible, reliable and material. If it satisfies these three basic requirements the item of evidence will usually be admissible.
An example of one of the more common rules of evidence is the»hearsay rule». The states and the authorities do not agree on the application of this rule and in practice it can become very complex,
but simply stated this rule will exclude all evidence concerning a statement made out of court by some person other than the testifying witness if the testimony is presented to prove the truth of the matter asserted. Thus, if the witness should offer to testify that Blumberg told him that the defendant hit the plaintiff, this evidence would be excluded if the plaintiff should offer this testimony to prove that he was hit by the defendant. If, however, the purpose of the testimony is merely to prove that Blumberg made this statement, then it will be admissible.
Another popular rule of evidence will exclude any testimony which is merely an opinion of the witness where the witness is not an expert in the field which is the subject of the question. A third rule frequently encountered in litigation relates to the privileges afforded to certain classes of persons. For example, statements made to an attorney or doctor in their professional capacity are privileged such that they cannot be admitted as evidence in a trial without the permission of the person who made the statement.
Most of the modern authorities recognize that these rules will often exclude valuable and probative evidence; it is also understood that in some cases these rules result in ridiculous results. For this reason, the modern tendency is to create exceptions to the application of the rules and to apply the rules as liberally as possible to admit as much evidence as will be probative to the final determination of the case. In many cases where the decision is to be made by the judge without a jury, the rules are relaxed to even a greater extent under the assumption that the judge is more capable than the jury in sifting the probative evidence.
At the completion of the oral argument the case is submitted to the court or jury for a decision. During the consideration of the case the court may call for additional briefs to illuminate various issues which had not been clarified previously. The judge will generally conduct his own research of the relevant authorities depending upon the quality of the briefs submitted by the attorneys. Because of this research and the congestion of the courts, the decision may not be rendered until several months after the case has been submitted. Upon rendition of the judgment the losing party will be given a limited time in which to take an appeal to a higher court. This period is generally about sixty days; at the expiration of this period, if an appeal has not been taken, the judgment will become final.
As contrasted with the Swedish system, in the United States the parties and the court on appeal are bound by the facts as determined by the trial court. The parties may not in the usual case present evidence or witnesses in the appellate court. The argument on appeal, therefore, centers around the appropriate substantive law that should be applied to these facts and whether there is some evidence to support the verdict or judgment. The parties will present to the appellate court written briefs; these briefs will generally be printed and will be considerably more extensive than the briefs presented to the trial court. They will be primarily concerned with a close scrutiny and
analysis of the facts, the legal precedents and the significance of each which will have an influence on the decision of the case.
The decision by the appellate court will be based primarily upon the record of the trial court and the briefs submitted by the parties. Each party is given only a limited time to conduct an oral argument, ranging from one half hour to one hour. During the oral argument the attorney will present the major thesis of his argument and answer questions from the court on problems which were not satisfactorily explained in the briefs.
This same procedure will be followed on appeal whether the appeal is in the intermediate or the highest court of the state; only the details of the procedure may be different. In the normal case, once the highest state court has rendered its decision it must be accepted by the parties as final and there will be no recourse to any other authority. It is only in those cases which involve a federal question or an issue arising under the Constitution, laws, or treaties of the United States that the parties may possibly receive a hearing before the United States Supreme Court.
As more and more administrative agencies are created to conduct various phases of government activity there is an increasing amount of hearings which are conducted by the administrative boards rather than the courts. Since these boards are not bound by the rules prescribed for the judiciary, the more formal procedures are relaxed during the hearing. As an example, the extensive rules of evidence found in the judicial trial are considerably relaxed in the administrative hearing and the weight that is to be given to any particular item of evidence is left to the determination of the administrative officer. Although written documents are generally submitted by the parties, they are of a less formal nature.
Another area which is pre-empting the field of court litigation and which offers a wide area of activity for the attorney is the processes of arbitration, mediation and conciliation. Especially in the area of business it is not uncommon that the businessmen will prefer to settle a dispute by one of these methods rather than by litigation. As the time delay in the courts increases these processes become more popular.