Researching
Civil Procedure
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The Purpose of Court Rules
When construing the FRCP, the highlighted language
should guide your efforts.
http://judiciary.house.gov/media/pdfs/printers/109th/31308.pdf
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Additional Purposes of Court Rules
To regulate the business of courts
To control the conduct of litigants
To establish uniform procedures
To provide parties with information and instructions
about proceedings
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Working with Rules
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Read the Rule
Read the Rule
Read the Rule!
With apologies to Felix Frankfurter (“read the statute…)
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The U.S. House of Representatives,
Committee on the Judiciary, Print Shop,
maintains the current text of of the FRCP and
other federal rules in .pdf format:
http://judiciary.house.gov/Printshop.aspx?Section=1
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The front page of the
rules will state the
date on which any
amended rules took
effect.
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Research into the Federal Rules of Civil
Procedure can look forward from or
back to the enactment of the rule.
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Working forward in Time from
a Rule’s Adoption or
Amendment:
What the Courts say about
the text of a rule
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Look for
Intelligent Commentary and
Analysis
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Treatises and other multi-volume
works listed here will answer
almost every research question
regarding the Federal Rules of
Civil Procedure that you will ever
encounter.
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Read a Treatise
The exhaustive scholarly treatment of the federal rules of civil
procedure (as well as those of criminal procedure, appellate
procedure, and evidence) makes Federal Practice and
Procedure, by Charles A. Wright and others a key starting
point for your research. “Wright and Miller” is cited more
than a thousand times each year in published federal district
and appellate court decisions. Wright and Miller explains the
history of each rule, explains how the rule has been
interpreted, and cites to cases that have discussed and
interpreted the rule.
Law Library: 3d ed. West, 1998 -.
KF8840 W71 (2 copies, one on Reserve).
Westlaw: FPP
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A less scholarly and more practitioner-oriented multi-volume
treatise is James W. Moore, Moore’s Federal Practice,
cited in published federal opinions about half as often as
Wright and Miller (still a respectable number). Although
coverage is similar to that of Wright and Miller, Moore’s also
contains the Manual for Complex Litigation and the
Reference Manual on Scientific Evidence.
Law Library: 3d ed. Matthew Bender, 1997 -.
KF8837 M6 1997.
Lexis: Legal > Secondary Legal > Matthew Bender >
By Area of Law > Federal Practice >
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Most volumes of Wright and Miller and Moore’s Federal
Practice are organized by rule number, with a number of
other volumes covering jurisdiction.
Good entry points include
subject indexes
tables of statutes
tables of rules.
Both Wright and Miller and Moore’s have online indexes.
Indexes are frequently more helpful in quickly identifying
the proper area of a multi-volume treatise than is a keyword
search of the full-text.
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Multi-volume treatises organized by subject:
Federal Procedure, Lawyer’s Edition: A ProblemSolving Textual Analysis of Federal Judicial and
Administrative Procedure. West, 1981 -.
Law Library: KF8840 .F44.
Westlaw: FEDPROC
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Shorter analytical treatises include:
Jack H. Friedenthal, et al., Civil Procedure. 5th ed. 2005).
Law Library: KF 8840 .F72 2005 (Reserve).
Fleming James, Jr., et al., Civil Procedure (5th ed. 2001).
Law Library: KF 8840 .J3 2001
Larry L. Teply, Ralph U. Whitten, Civil Procedure (3d ed.
2004). Law Library: KF 8840 .T46 2004) (has a more
historical perspective of the development of the rules of
civil procedure than the other hornbooks)
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Both the United States Code Annotated (U.S.C.A.) (West)
and the United States Code Service (U.S.C.S.) (Lexis)
have volumes for the Federal Rules of Civil Procedure, with
annotations to treatises and journal articles.
Because the two publishers provide annotations to their own
publications, look at both sets if you have access to both.
U.S.C.A.
U.S.C.S.
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U.S.C.A. References to Treatises, Encyclopedias,
and Law Review Articles for 28 U.S.C. § 2073.
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U.S.C.S. References to Treatises, Encyclopedias,
and Law Review Articles for 28 U.S.C. § 2073.
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Looking for Cases Directly
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Both the United States Code Annotated (West) and
the United States Code Service (Lexis) have volumes
for the Federal Rules of Civil Procedure, with
annotations to case law.
In general, the case annotations for the sets have no
more than 60% overlap. As with the references to
treatises and journal articles in these sets, if you have
access to both sets, you should consult both sets.
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Case Services
Federal Rules Decisions (West). The FRD has cases
from the United States District Courts regarding the FRCP.
Coverage begins in 1938. In addition, the FRD contains
articles, speeches, and reports of judicial conferences.
Law Library: KF105 .F44.
Westlaw: FRD (cases, articles and court rules); FRDART (articles); FRD-CS (cases); FRD-Rules (versions of
FRCP and amendments; coverage starts with 1944).
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Federal Rules Service (West). The Federal Rules
Service contains federal cases that address FRCP
issues. Irrelevant issues are omitted. A separate
FINDEX index helps locate cases. The general
organization of the set is by FRCP Rule. Law
Library: KF8830 .F4.
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Federal Rules Digest
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Working Backward in Time
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Looking for Intent of the Courts
and Congress
in Promulgating the Rules
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The Rules Enabling Act of June 19, 1934, ch. 651, 48 Stat.
1064 (now codified at 28 U.S. Code § 2071-2077),
authorized the Supreme Court to prescribe rules of civil
procedure for the district courts.
Under the current version of § 2074, the Supreme Court
must transmit proposed amendments to the Congress by
May 1. The amended rule cannot become effective before
December 1.
The original rules were adopted by order of the Supreme
Court on December 20, 1937, transmitted to Congress by
the Attorney General on January 3, 1938, and became
effective September 16, 1938.
(308 U.S. 645; Cong. Rec., vol. 83, pt. 1, p. 13, Exec.
Comm. 905; H. Doc. 460 and H. Doc. 588, 75th Cong.)
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Federal Rules of Procedure:
Effective Dates
• Federal Rules of Civil Procedure
– Effective 9-16-1938
• Federal Rules of Criminal Procedure
– Effective 3-21-1946
• Federal Rules of Appellate Procedure
– Effective 7-1-1968
• Federal Rules of Evidence
– Effective 7-1-1975
The FRCP has
extensive legislative
and judicial history
from prior to and
after its adoption in
1938.
The FRCP has been
amended frequently
since 1938.
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How federal rules of procedure are promulgated
STEP 1
– Suggestion for a change in the rules, submitted
in writing to the secretary, at any time.
– Referred by the secretary to the appropriate
advisory committee, promptly after receipt.
– Considered by the advisory committee, normally
at the next committee meeting.
– If approved, the advisory committee seeks
authority from the Standing Committee to
circulate to bench and bar for comment.
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STEP 2
– 6 month public comment period.
– Public hearings may be held during the public comment
period.
STEP 3
– Advisory committee considers the amendment afresh in
light of public comments and testimony at the hearings,
about one or two months after the close of the comment
period.
– Advisory committee approves amendment in final form and
transmits it to the Standing Committee, about one or two
months after the close of the comment period.
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STEP 4
– Standing Committee approves amendment, with
or without revisions, and recommends approval
by the Judicial Conference, normally at its June
meeting.
STEP 5
– Judicial Conference approves amendment and
transmits it to the Supreme Court, normally at its
September session.
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• STEP 6
– The Supreme Court prescribes the amendment,
by May 1.
• STEP 7
– Congress has a statutory time period in which to
enact legislation to reject, modify, or defer the
amendment, by December 1.
– Absent Congressional action, the amendment
becomes law.
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• Local Rules
– Fed. R. Civ. P. 83 partially delegates U.S.
Supreme Court’s rulemaking power by
authorizing the district courts to promulgate local
rules for conduct of their business, providing that
the rules do not conflict with Acts of Congress or
Rules of Practice and Procedure.
– Hence, litigation is subject to both national and
local court rules, both of which must be
researched.
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As with any Act of Congress, the major sources of legislative
history are hearings, reports, prints, and debates.
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The judicial history includes documents from the rule-creation
process (reports), although cases interpreting the rules may
state what the intent in promulgating a rule was.
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Looking for
Proposed Rules
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Locating Proposed Rules
• House Judiciary Committee,
subcommittee on Courts, the Internet,
and Intellectual Property
• Senate Judiciary Committee,
subcommittee on Administrative
Oversight and the Courts
• U.S. Courts, Federal rulemaking
• Eleventh Circuit
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http://judiciary.house.gov/committee
structure.aspx?committee=3
http://judiciary.senate.gov/subcommittees/110/oversight110.cfm
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http://www.uscourts.gov/rules/index.html
For modern rule-making, this is the best place to start.
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Other online Websites for Court Rules
Federal Rules of Procedure
Cornell’s Legal Information Institute:
http://www.law.cornell.edu/wex/index.php/Court_rules
LLRX: http://www.llrx.com/courtrules
Federal Local Court rules
11th Circuit Court of Appeals
http://www.ca11.uscourts.gov/rules/index.php
U.S. District Court, Northern District of Florida
http://www.flnd.uscourts.gov/attorneys/index.cf
m
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Updating Federal Court Rules
• Start with pocket parts or supplements to
USCA and/or USCS
• Advance sheets to Federal Reporter and
Federal Supplement contain text of
proposed & adopted amendments with
Advisory Committee notes
• U.S. Code Congressional & Administrative
News (USCCAN)
• Court websites
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Florida Rules
Florida Courts website, Proposed and Amended Rules
http://www.floridasupremecourt.org/decisions/index.shtml
Florida Bar Website
http://www.floridabar.org/tfb/TFBLegalRes.nsf/
First District Court of Appeals, Administrative Orders
http://www.1dca.org/ordersframe.htm
Second Judicial Circuit, Administrative Orders/Local Rules
http://www.2ndcircuit.leon.fl.us/index.php?Page=AdminOrders.php
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