FRCP

FRCP

The Federal Rules of Civil Procedure (FRCP) govern civil procedure (i.e. for civil lawsuits) in United States district (federal) courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the FRCP. The Court’s modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary’s internal policy-making body. Although federal courts are required to apply the substantive law of the states as rules of decision in cases where state law is in question, the federal courts almost always use the FRCP as their rules of procedure. (States may determine their own rules, which apply in state courts, although most states have adopted rules that are based on the FRCP.)

The Rules, established in 1938, replaced the earlier procedures under the Federal Equity Rules and the Conformity Act (28 USC 724 (1934)) merging the procedure for cases, in law and equity. The Conformity Act required that procedures in suits at law conform to state practice usually the Field Code and common law pleading systems. Significant revisions have been made to the FRCP in 1948, 1963, 1966, 1970, 1980, 1983, 1987, 1993, 2000, and 2006. (The FRCP contains a notes section that details the changes of each revision since 1938, explaining the rationale behind the language). The revisions that took effect in December 2006 made practical changes to discovery rules to make it easier for courts and litigating parties to manage electronic records.

The Federal Rules of Civil Procedure were amended in 1966 to unify the civil and admiralty procedure, and added the Supplemental Rules for Certain Admiralty and Maritime Claims (now Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions). The FRCP were completely rewritten, effective December 1, 2007, under the leadership of a committee headed by law professor and editor of Black’s Law Dictionary, Bryan A. Garner, for the avowed purpose of making them easier to understand. The style amendments were not intended to make substantive changes in the rules. Effective December 1, 2009 substantial amendments were made to rules 6, 12, 13, 14, 15, 23, 27, 32, 38, 48, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72 and 81. While rules 48 and 62.1 were added. Rule 1 (f) was abrogated. The majority of the amendments affect various timing requirements and change how some deadlines are calculated. The most significant changes are to Rule 6.

Before the FRCP were established, common-law pleading was more formal, traditional, and particular in its phrases and requirements. For example, a plaintiff bringing a trespass suit would have to mention certain key words in his complaint or risk having it dismissed with prejudice. In contrast, the FRCP is based upon a legal construction called notice pleading, which is less formal, is created and modified by legal experts, and is far less technical in requirements. In notice pleading, the same plaintiff bringing suit would not face dismissal for lack of the exact legal term, as long as the claim itself was legally actionable. The policy behind this change is to simply give “notice” of grievances and to leave the details for later in the case. This acts in the interest of equity by concentrating on the actual law rather than the exact construction of pleas.

Thirty-five states have adopted procedural codes based on the Federal Rules, but sometimes there are slight variations. In addition to notice pleading, a minority of states (e.g., California) use an intermediate system known as code pleading, which is a system older than notice pleading and which is based upon legislative statute. It tends to straddle the gulf between obsolete common-law pleading and modern notice pleading. Code pleading places additional burdens on a party to plead the “ultimate facts” of its case, laying out the party’s entire case and the facts or allegations underlying it. Notice pleading, by contrast, simply requires a “short and plain statement” showing only that the pleader is entitled to relief. (FRCP 8(a)(2)). One important exception to this rule is that, when a party alleges fraud, it must plead the facts of the alleged fraud with particularity. (FRCP 9(b)). (The Field Code, which was adopted between 1848 and 1850, was an intermediate step between common law and modern rules, created by New York attorney David Dudley Field. Field’s code, among other reforms, merged law and equity proceedings.)