A Tale of Two Civil Procedures
44 Pages Posted: 24 Jan 2022 Last revised: 25 Jan 2022
Date Written: January 24, 2022
In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.
This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which include federal courts coupled with state court commercial dockets and the other pockets of state civil courts where lawyers tend to be paid and plentiful—and “lawyerless” state courts, which hear the vast majority of claims filed in this country. Doing so, we argue, reveals fundamental differences between the two sets of court procedures that operate in the United States and much about the promise and limits of procedure. We discuss how this dichotomy plays out in three of the most contentious and talked about topics in civil procedure scholarship today: written and unwritten procedure making, the role of new technology, and the handling of masses of similar claims. Seen through this lens, these examples illuminate where and how lawyers are essential to procedural development and procedural protections; they help us better understand where technology should be used to assist or replace lawyers, and where it should be used to reinvent procedure or make up for lawyers’ absence; and they reveal when fixing court procedure may simply not be enough.
Keywords: civil procedure, access to justice, judges, lawyers, courts, ad hoc procedure, state courts, federal courts, e-notice, e-service, legal tech, aggregate litigation, mass torts, eviction
JEL Classification: K10, K4, K40, K41
Suggested Citation: Suggested Citation