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What is a Procedure?

Updated on August 23, 2010

A procedure, in law, is the judicial process for enforcing rights and duties or for punishing crimes. It is the body of rules governing the steps in a legal action, including the course of proceedings to bring the parties into court and the progress of the action thereafter. The term "procedure" denotes the method of a court in hearing, dealing with, and disposing of matters before it, as distinguished from the substantive rules of law applied by the court. In short, it describes the machinery for carrying on a lawsuit or a prosecution. Included within its compass are all matters embraced by the technical terms "pleading," "evidence," and "practice," whether in trial courts or in the process of review by appellate courts. Procedure is sometimes called adjective law, especially when it is compared to or distinguished from substantive law. The form, manner, and order of conducting civil suits and criminal prosecutions from the beginning of a case until its final disposition are all part of procedure. Moreover, the term may also be used to designate the course of proceedings before administrative agencies.

While the terms "practice" and "procedure" are often used together or separately as general terms to describe the processes of law, they are sometimes said to be distinguishable, with the latter frequently having the broader meaning. Practice has been defined as the form, manner, and order of conducting suits or prosecutions in the courts through their various stages. The term also refers to the rules adopted by a court to facilitate the transaction of the business before it, and it may include or be distinguished from pleading. Unlike procedure, it does not generally include rules of evidence.

The distinction between procedure and substance is important. In general, procedure relates to the machinery of litigation, while substance refers to the law governing legal rights and duties apart from the method of enforcing them. In specific cases, however, the line of demarcation is difficult to draw. Statutes which are procedural can generally be applied in suits arising from past transactions, but substantive laws raise serious constitutional questions in this connection. In dealing with cases involving the application of the legal rules of one jurisdiction by the courts of another, it is essential to determine whether the rules in question are procedural or substantive. In such conflict-of-laws situations (in which suits are brought in one jurisdiction to enforce rights arising from transactions that occurred in another jurisdiction), the court deciding the case usually applies its own rules to determine procedural questions but attempts to follow the rules of the other jurisdiction with respect to matters which it considers substantive.

A decision as to whether a particular legal question is procedural or substantive is important when a federal court is asked to decide a non-federal case. Before 1938, when the United States Supreme Court decided the milestone case of Erie R. Co. v. Tompkins (304 U.S. 64), federal courts did not consider themselves bound by state court decisions on questions of general law. This case held that federal courts must follow state deci-sional law in substantive matters (but not with respect to procedure), except as to matters governed by the Constitution of the United States or by acts of Congress.

Since each state controls the practices in both civil and criminal cases in its own courts, many different procedural systems exist in the United States. Civil actions in federal courts throughout the country are governed by the Federal Rules of Civil Procedure and criminal trials by the Federal Rules of Criminal Procedure. The rule-making and quasi-judicial functions of federal administrative agencies are subject to the rules for fair and consistent practice in the Administrative Procedure Act of 1946. The following discussion is based largely on the Federal Rules of Civil Procedure, which are widely applied and are typical of modern procedural systems in the United States. These rules prescribe a uniform procedure for the federal courts in civil cases, replacing the Conformity Act of 1872 and the federal equity rules of 1912. Promulgated by the Supreme Court in 1937, they became effective in the following year. As we have seen, it was also in 1938 that the court held in the Erie R. Co. v. Tompkins case that the federal courts must conform to local state law in substantive matters.

Before 1938 the procedure of federal courts in civil actions at law was governed by local state law. Acting under its power to regulate the procedure of federal courts, Congress in 1934 authorized the Supreme Court to prescribe general rules for civil actions at law and "to unite the general rules prescribed by it for cases in equity with those in actions at law so as to secure one form of civil action and procedure for both." It specified that such rules could not "abridge, enlarge or modify any substantive right" and must "preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution."

The federal rules do not extend or restrict the jurisdiction of federal courts. Although they do not apply directly to admiralty, bankruptcy, or copyright cases or to criminal prosecutions, they have been made generally applicable to bankruptcy and copyright proceedings by other rules and orders.

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