Court Rules and Forms Professor Deborah McGovern Winter 2009

Goals: Students will recognize court rules. Students will understand importance of finding and updating court rules. Students will be able to locate text of rules and interpretive materials for Federal and Florida courts.

What are rules of procedure? Rules of procedure govern how a case is brought before a court and how it proceeds from beginning to final outcome. Compare: Substantive law governs the rights and duties of people in the conduct of their personal and business affairs.

Among other things… Court rules determine:  method of filing a complaint & responding;  assignment of cases among judges;  method of appealing a decision; and  method of filing motions before a court.

Examples of rules of procedure Fed. R. Civ. P. R 23 Misjoinder and Nonjoinder of Parties Fed. R. Crim. P. R 32.1 Revoking or Modifying Probation or Supervised Release Fla. R. Civ. P. R Service of Pleadings and Papers

Why the ability to research court rules is important Failure to follow applicable procedural rules may be grounds for dismissal of suit or attorney or client sanctions. In order to enforce a client’s rights, you must know how to conduct the proceedings.

Court Rules The authority of courts to promulgate their own governing rules is:  inherent within the court’s authority;  located within a constitution; or  located within a statute.

Federal System – State and Federal Rules of Procedure To determine which rules apply, ask:  Will claim be brought in federal or state court?  Which district? Federal court applies federal rules and state court applies its state rules  Federal procedure applies even if federal court is deciding a claim based on substantive state law (diversity jurisdiction) Many state and federal rules are identical or similar enough that cases interpreting federal rules may be useful in interpreting their state counterparts – the same is true of various districts/circuits

Civil CasesCriminal Cases Pre-trial pleadings discovery motions Civil procedureCriminal procedure TrialEvidence Civil procedure Evidence Criminal procedure Post-trialCivil procedureCriminal procedure AppealsAppellate procedureAppellate or criminal appellate procedure Rules of Procedure, Adapted from Christina Kunz, et. al. The Process of Legal Research

Rules are generally arranged chronologically, e.g., FRCP arranged in sequence in which litigation proceeds Each rule states what is permissible or required in the litigation practice covered by that rule

How to Research Rules of Procedure Formulate procedural issue Locate applicable rule or rules  Which court? Read rule Read a treatise discussion Cases which interpret the rule Advisory notes or comments

FEDERAL COURT RULES

Federal Courts Federal court rules and procedures can be categorized as follows:  rules of general application that are national in scope (Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Appellate Procedure and Federal Rules of Evidence);  individual sets of rules for the various specialty federal courts, i.e., Supreme Court, Bankruptcy Courts, and Admiralty Court;  local federal court rules; and  statutory requirements located in Title 28 of the U.S.C. (Judiciary and Judicial Procedure)

Where to Find the Text of Federal Court Rules United States Code:  Title 11 – Bankruptcy rules  Title 18 – Federal rules of Criminal Procedure for the United States District Courts (F.R. Crim. P.)  Title 26 – Practice and procedure rules for the United States Tax Court  Title 28 Federal Rules of Civil Procedure for the United States District Courts (F. R. Civ. P.) Federal Rules of Evidence for the United States Courts and Magistrates Federal Rules of Appellate Procedure specialty federal court rules are located within the title that governs their subject matter (Title 11 is Bankruptcy, Title 17 is Copyright) Also available in annotated form in USCS and USCA

Federal Court Rules  specialty federal court rules such as Bankruptcy are located in Title 11 of the U.S.C. while Copyright is located in Title 17 of the U.S.C.  specialty federal court rules are located within the title that governs their subject matter (Title 11 is Bankruptcy, Title 17 is Copyright)

Federal Court Rules Rule changes for unannotated sources are supplemented by the following publications:  Federal Procedure, Lawyers Edition (KF 8840.F45)  Federal Rules Service  Westlaw  Lexis  Cyclopedia of Federal Procedure, 3 rd ed. (KF 8810.C93)  Federal Reporter & Federal Supplement  pamphlets

Federal Rules Annotated publications of federal court rules include:  United States Code Annotated (USCA)  United States Code Service (USCS)  Digest of United States Supreme Court Reports, Lawyers Edition These have text of rules in addition to historical notes, cross-references, and notes of decisions.

Advisory Committee Notes Very persuasive as to the drafters’ intent Need to know about amendments so you don’t rely on case interpretations that arose under the old language of the rule

Example of Advisory Committee Notes

Commentary Federal Practice and Procedure by Wright and Miller  Westlaw Moore’s Federal Practice  Lexis

Federal Rules When the application of federal court rules are litigated, decisions about these rules can be found in the following publications:  Federal Rules Decisions (FRD), part of the National Reporter System, contains cases of federal district courts from 1939 and 1946 onwards that construe the meaning of the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. These decisions are not published in the Federal Supplement.

 This series also includes articles about federal courts and procedures as well as cases.  A cumulative index is published in every 10th volume.  A cumulative index is published for volumes in volume 122.  This series includes the West headnotes and key number system.  Access cases within the series via the West Federal Practice Digest series. Federal Rules Decisions, Con’t

Federal Court Rules Federal Rules Service publishes court cases that construe the meaning of the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure. This series is divided into 3 sets:  1 st Series,  2 nd Series,  3 rd Series, 1985-Present

Federal Court Rules To access cases in the Federal Rules Service Reporter, use the Federal Rules Digest, 3d ed. Federal Rules Digest is a multi-volume series. It digests all court cases from April 1954 onwards that appear in the FRS.

Federal Court Rules Federal Rules of Evidence Service publishes decisions from federal courts that interpret the Federal Rules of Evidence. Access to this service is via the Federal Rules of Evidence Digest.

Federal Court Rules If you need more information than provided by the text of the rules, the Advisory Committee notes, judicial interpretations, or secondary sources, consult:  Records of the U.S. Judicial Conference: Committees on Rules of Practice and Procedure,

Drafting History of the Federal Rules of Criminal Procedure The Federal Rules of Evidence: Legislative Histories and Related Documents

Federal Citators Shepard’s Federal Rules Citations includes citations to:  Federal Rules of Civil Procedure  Federal Rules of Criminal Procedure  Federal Rules of Appellate Procedure  Federal Rules of Evidence

Free Internet Sites

Westlaw US-Rules: Federal Rules of general application. Also includes Advisory Committee Notes. Can limit search using the citation field – if you only want rules from the Federal Rules of Civil Procedure you can put ci(frcp) in your search

Westlaw

Searching within the rules

Results using field search ci(frcp /p [Rule #]

Other Westlaw Federal Rules Databases Federal Rules Update Orders (US- RULESUPDATES) - Federal court orders that update federal court rules as displayed in the Federal Rules database (US-RULES) State Court Rules (RULES-ALL) – Local Federal Court Rules for all states Federal Criminal Justice Rules (FCJ-RULES) Federal Bankruptcy Rules (FBKR-RULES) - …most recent versions of the Bankruptcy Rules and Official Forms …

Finding Federal Rules Database on Lexis

If you don’t know the number of your rule, it’s best to browse the table of contents

Lexis Federal Rules Databases

Interpretive Assistance

Secondary Sources Treatises with useful commentary on federal court rules include:  Cyclopedia of Federal Procedure, 3d ed.  Federal Procedure, Lawyers Edition (KF F45)  Federal Practice & Procedure, 3d ed. (Wright & Miller/ KF 8840.W47)  Moore’s Federal Practice, 3d ed. (KF M663)

Secondary Sources Orfield’s Criminal Procedure under the Federal Rules, 2d ed. (KF ) Weinstein’s Federal Evidence: Commentary on Rules of Evidence for the United States Courts, 2d ed. (KF 8935.W452)

Form Books for Federal Courts Bender’s Federal Practice Forms Nichols Cyclopedia of Federal Procedure Forms West’s Federal Forms Federal Procedural Forms, Lawyers Edition

U.S. Supreme Court Rules Rules governing practice before the U.S. Supreme Court can be found on the Supreme Court’s Internet site at Robert Stern’s Supreme Court Practice (8 th ed. 2002) is the most widely used treatise for practice before the U.S. Supreme Court.

U.S. Courts of Appeal Rules specific to the U.S. Courts of Appeal can be found in the following sources:  Federal Procedure, Lawyers Edition  Federal Local Court Rules  Rules volumes (Titles 18 and 28) of the U.S.C. & U.S.C.A.  Rules volumes of the U.S.C.S  USCOURTS.GOV

USCOURTS.GOV

USCOURTS.GOV con’t

At USCOURTS.GOV

11 th Circuit, Linked from USCOURTS.GOV

Link from USCOURTS.GOV

U.S. District Courts Rules specific to U.S. District Courts can be found in:  Federal Local Court Rules, 2 d ed. Fed. R. Civ. P. R 83 allows each District Court to promulgate its own local rules, so long as they do not conflict with the Federal Rules of Civil Procedure