Chapter 7: The Development of Modern Procedure
The Forms of Action
American courts loosely based on English Courts and common law tradition.
The English Courts: Start by having purely oral lawsuits. The writing requirements for pleadings (the complaint and the answer) are incredibly strict. If you don’t get it perfect, your client will lose.
US softens the English system – less and less harsh over time, especially Federal system. Holdovers: 12b6 motion still exists, but most are substantive motions. A lot of states are a little more harsh. They still have some of the same pleas.
Distinction between law and equity.
Courts of law were the crown courts, regular courts run by the King. (actions for damages, breach of contract, etc.) This is where you have a jury and get your damage awards.
Equity courts are not King’s courts, but church courts. Go in front of priest, reverend, or bishop and plead your case. They could grant equity – the only courts that could do so. (injunction, specific performance, restitution – equitable relief) No jury here. They were doing “God’s work”. If you filed in wrong court, dismissed with prejudice.
American courts took this concept over. Even different Federal courts until 1938.
They did away with law and equity when adopting federal rules of civil procedure.
Some state courts still have a difference, although most states don’t.
To this day, whether you have a right to jury trial depends on whether action is action at law or equity – only legal action allows for jury trial.
Sets stage for Modern Pleadings.
Chapter 8: Modern Pleadings
Four functions of pleading rules:
1. providing notice of the nature of a claim or defense
2. identifying baseless claims
3. setting each party’s view of the facts
4. narrowing the issues
Modern pleading rules generally are not calculated to perform the last three of these functions. Rule 8(a) requires only a short and plain statement of the claim showing that the Π is entitled to relief.
Objective: to deter baseless claims
– requiring a short and plain statement of the claim and a certification that the pleadings were truthful (Rule11)
– establishing other provisions designed expressly to screen baseless claims (most notably, the motion to dismiss under Rule 12 and the motion for summary judgment under Rule 56)
Also reflects intention to relegate to procedural devices other than the
2) p. 513: holding that an allegation that Δ “had charge of” certain construction work was a conclusion of law, which resulted in the dismissal of the action based on a statute that imposed liability on any person “having charge of” the work in question.
5. Cook, Statements of Fact in Pleading under the Codes: The pleading should give the adversary and the court reasonable notice of the real nature of the claim or defense; nothing more should be required.
6. Anderson v. Chambliss (1953) p. 515: party not allowed to plead an essential fact merely by referring to an exhibit in which the fact is stated.
7. Standard Register Co. v. Greenberg (1957) p. 515: holding that a reference to a writing in the pleading, coupled with its annexation, is sufficient to allege its contents. Note that Rule 10(c) makes a written instrument that is attached to a pleading as an exhibit “a part thereof for all purposes.”
B. Detail Required under the Federal Rules
Rules 8(a) and 12(b)
