American civil procedure allows lawyers in civil suits to get information from the opposing party and from witnesses. The techniques for this purpose are called pre-trial discovery.

    The chief method of discovery is deposing of the parties and witnesses. In this out-of court procedure, the person whose deposition is taken is questoned under oath by lawyers for each side. the device is useful in finding information that is relevant to the case. The parties almost certainly will want depositions taken of each other, because they are treated as admissions, and can be used by their adversaries as evidence at trial.

    Another useful device is written interrogatories, which usually may be addressed only to a party to the suit. Since they will require an opponent to supply information that he does not carry readily in his head, they may be even more valuable in finding out what he will try to prove.

    Other discovery devices include compulsory physical examinations by doctors chosen by the other party in personal injury cases; orders for the production of documents; and serving of demands by one party on the other to admit facts under oath.

    These procedures allow a party to learn not only about maters that may be used as evidence, but also about matters that may lead to discovery of evidence.

    The court usually takes no part in discovery procedures. However, if one party feels the other is making improper discovery requests, or is not reasonably responding to discovery requests, he may make a motion to the court and ask that the violating party be ordered to obey the discovery rules.

    Discovery serves at least two purposes. First, it takes the surprise element out of litigation and ensures that the results of lawsuits are based on the merits of the controversy rather than on the ability or skill of counsel. Second, discovery encourages settlement by making all evidence available to both sides. At the end of discovery, a pretrial conference between the lawyers and the judge is usually held. At this conference the pleadings, results of discovery, and probable evidence are reviewed in an attempt to settle the suit. The issues may be further narrowed, and the judge may even predict the outcome in order to encourage settlement. Today, a very substantial number or lawsuits that are filed are settled sometime prior to trial. Discovery procedures contribute significantly to these settlements.

    Discovery also helps make summary judgment a viable and fair procedure, because it enables a party to find out issues on which the opposing party has no evidence. Thus, if a party finds that an issue that is decisive of the case does not exist, he may make a motion for summary judgment. This motion can be supported by affidavits and depositions gathered during discovery. It asks the court to decide the case in the mover’s favor by showing that the opposing party does not have any admissible evidence to support his position on the issue at trial. Summary judgment saves the parties the trouble of going to trial.

    A further function of discovery may be the harassment of an opponent. To be sure, this is not accounted a legitimate function of discovery, but betwwen the limits of the clearly acceptable scope of discovery and the clearly abusice there is a range in which the litigant may maneuver to the greater or lesser annoyance and expense of his opponent. And the existence of that range of maneuver is a fact of life under modern procedure.

    The discovery phase of litigation can be lengthy and costly, providing an advantage to those litigants who can afford to absorb such costs. Because of this problem, some jurisdictions have limited the number of witness who can be deposed or the number of witness who can be deposed or the number of interrogatory questions that can be put forward.

    After discovery is completed, if the case has not been terminated by dismissal, summary judgment, or settlement, it must be set for trial. Typically either party may file a notice of trial, at which time the case will be given a number and placed on a trial calendar. These calendars have become extremely long in many courts, and the case may have to wait a year, three years, or more before it is called for trial, especially if a jury trial has been requested.


The Adversary System

    The law of procedure can be divided into criminal and civil. Civil procedure is the body of rules by which the parties in civil litigation use the court to settle disputes.

    Generally, the party bringing the lawsuit to the court is called the plaintiff, and the party against whom the action is brought is called the defendant. On appeal, the appealing party is usually referred to as appellant, and the winning party at trial is called the appellee.

    In most states and in the federal courts, all persons may join in one lawsuit as plaintiffs if the causes of action arise out of the same transaction or series of transactions and involve common questions of law or fact. In addition, the plaintiff may join as defendants all persons who are necessary to a complete determination or settlement of the issues. if a defendant alleges that a complete determination of a controversy cannot be made without other parties, that defendant may bring in new third parties as third-party defendants. The procedure is usually followed when someone is liable to a defendant who, in turn, is liable to the plaintiff.

    A distinctive element of the Anglo-American judicial procedure is the adversary system, which is the characteristic form of trial procedure in common law countries, in civil as well as criminal cases. Its essential feature is that a decision is made by judge, or judge with jury, who finds the facts and applies the law from submissions made by partisan advocates on behalf of the parties. In this system of trial procedure, the responsibility for beginning suit, for shaping the issues, and for producing evidence rests almost entirely upon the parties to the controversy. The court takes almost no active part. It does not do its own investigating. It rarely even asks a question. Most often it is only responsible for guiding the proceeding according to certain procedural rules and for making decisions on questions of law that arise. This system is to be contrasted with what is generally called the inquisitorial system, which is used in countries of the civil law tradition such as France and Germany. In the inquisitorial system of trial, the judge applies the law and finds the facts by his own active investigation and inquiries at trial.

    Under the adversary system, the scope of lawyers’ power and responsibility is wide. It is the lawyer who makes the initial and usually final decisions as to choice of court, size of claim, nature of claim, parties, extent and kind of pre-trial investigation, mode of trial ( whether jury or non-jury ), settlement offers, extent and kind of proof, style of presentation and argument, and, within limits, speed and vigor of presentation. Judges are called on to intervene only occasionally and then briefly, to ensure that all the procedural safeguards are met and essential fairness is achieved.

    The reasons for the prevalence of the adversary system are manifold. First, it is believed that a truer decision will be reached as a result of a contest directed by interested parties. Second, since the parties have a direct interest in the resolution of the dispute, they should bear the burden of the time and energy required. Third, setting up sides reduces the determination of the suit to some yes-or-no questions, which are easier for an unbiased judge. Fourth, the human instinct to do battle is better satisfied by a contest that is very much in the hands of the parties.

    Contrasted with the methods of scientific or historical research, this system of finding answers to legal controversies seems sometimes unsatisfactory. When one reflects on the fact that under the adversary system victory often turns on factors other than the true merits of the case, there is reason to be skeptical about it. Critics of the adversary system point out that it tends to reduce litigation to a costly game, in which the lawyers become the principal players and the outcome will turn on their skills rather than on the true merits of the case. In recent times there has been a trend toward increasing the affirmative or active functions of the court that reflects the larger trend away from the sporing or game theory of litigation. Nonetheless, it cannot be questioned that in the United States the primary responsibility and control over almost all phases of the judicial process continue to reside in the parties. Full understanding of the American legal procedure will require our constant attention to the existence of the adversary system as well as critical analysis of its shortcomings.



The Dual Court System 双轨制法院体系

    The American judicial system, reflecting the overall decentralized nature of its government, comprises a large number of federal and state courts.

    The federal and the state judicial systems are each constructed like a pyramid. Entry-level courts at both the state and federal levels are trial courts, tn which witnesses are called, other evidence is presented and the fact-finder ( ajury or sometimes a jujdge ) is called upon to decide issues of fact based on the law.

    At the top of each pyramid structure is the court of last resort, which has the authority to interpret the law of the relevant jurisdiction. In most states and in the federal system there is also a mid-level court of appeals.

    Along with certain federal crimes ( such as terrorism or drug trafficking across state lines ) , federal courts hear non-criminal or civil cases only if they are premised on a question about the meaning of a federal statute or application of the Constitution; if the parties are citizens of different states, or if one is a citizen of a foreign country, and more than $75,000 is at stake; or if the federal government itself is a party to a suit. For example, if a company is accused of violating a federal environmental law, the suit may be brought before a federal court.

    In theory, a party to a federal judicial proceeding has access to three levels of decisions: it may appeal the decision of the trial court to a U.S. Court of Appeals, and, if it is dissatisfied with the appellate court’s decision, it may seek further review of that decision by the United States Supreme Court. In practice, however, the Supreme Court agrees to review only a small number of cases each year that it considers to be of national signigicance.

    Each of the fifty states has its own set of courts having an overall structure that parallels that of the federal court system. These state courts hear the overwhelming majority of criminal and civil cases. State trial courts initially hear civil and criminal cases; decisions can then be reviewed by courts of appeal, and finally, a case may be reviewed by the state court of last resort, which, in most cases, is called the supreme court of the state. States also have different kinds of specialized courts dealing with such matters as juvenile and family relations, probate, tax, or trade and commerce. Many states and localities have small claims courts in which people can file claims for small sums of money directly, without attorneys, following simplified and relatively quick procedures.

    Federal judges, whether in district courts or the nine-member Supreme Court, are nominated by the President and subject to approval by a two-thirds vote of the Senate. To ensure their impartiality and to remove outside political pressures as much as possile, they are appointed for life, subject to removal only after impeachment for and conviction of a crime.

    At the state and local level, judges may be appointed or elected to specific terms of office. Elected or appointed, judges at every level must be seen as impartial arbiters of the law, not as partisan politicians. They cannot be removed before the end of their term for minor complaints or unpopular decisions. Like the federal court judges, they can be removed from office only through the process of impeachment and conviction.

    In civil and criminal matters, courts operate under the principle known as stare decisis, Latin for let the decisions stand. In other words, courts rely on the precedents established by previous court decisions in deciding current cases of similar legal issues and facts. Stare decisis does not mean that courts cannot, and do not, overturn principles established in previous decisions. However, reliance on precedents gives the law a measure of stability and predictability, and allows the parties to enter into relationships and regulate their conduct with reasonable assurance of the governing rules of law. Stare decises, in the words of one Supreme Court justice, is the strong tie which the future has to the past.


美国法院体系 The American Court System

The American Court System 美国法院系统

        Unlike most countries in the world, actually, there are fifty-two court systems in America—one for each of the fifty states, one for the District of Columbia, plus a federal system—similarities abound. The state court systems are established according to the constitution of each state. The federal courts are not superior to the state courts; they are simply independent systems of courts, which derives its authority from Article 3, Section2, of the U.S. Constitution. Although state court systems differ, Exhibit3-1 illustrates the basic organizational structure characteristic of the court system in many states. The exhibit also shows how federal court system is structured.


 1. State court System 州法院体系

      Typically, a state court system will include several levels, or tiers, of courts. State courts may include (1) trial courts of limited jurisdiction, (2) trial courts of general jurisdiction, (3) appellate courts, and (4) the state’s highest court (often called the state supreme court). Generally, any person who is a party to a lawsuit has the opportunities to plead the case before a trial court and then, if he or she loses, before at least one level of appellate court. Finally, if a federal statute or federal constitutional issue is involved in the decision of the state Supreme Court, that decision can be further pleaded before the Federal Supreme Court.


a.     Trial Courts 初审法院

        Trial courts are exactly what their name implies, courts in which trials are held and testimony taken. State trial courts have either general or limited jurisdiction. Trial courts that have general jurisdiction as to subject matter may be called county, district, superior, or circuit courts. The jurisdiction of these courts is often determined by the size of the county in which the courts sit. State trial courts of general jurisdiction have jurisdiction over a wide variety of subjects, including both civil disputes and criminal prosecutions. In some cases, trial courts of general jurisdiction may hear appeals from courts of limited jurisdiction.


    Some courts of limited jurisdiction are called special inferior trial courts or minor judiciary courts. Small claims courts are inferior trial courts that hear only civil cases involving claims of less than a certain amount, such as $5,000 (the amount varies from state to state). Suits brought in small claims courts are generally conducted informally, and lawyers are not even allowed to represent peoples in small claims courts for most purposes. Another example of an inferior trial court is a local municipal court that hears mainly traffic cases. Decisions of small claims courts and municipal courts may be appealed to a state trial court of general jurisdiction.


    Other courts of limited jurisdiction as to subject matter include domestic relations courts, which handle only divorce actions and child-custody cases, and probate courts.


b. Courts of Appeals 上诉法院

        Every state has at least one court of appeals (appellate court, or reviewing court), which may be an intermediate appellate court or the state’s highest court. About three-fourths of the states have intermediate appellate courts. Generally, courts of appeals do not conduct new trials, in which evidence is submitted to the court and witnesses are examined. Rather, an appellate court panel of three or more judges reviews the record of the case on appeal, which includes a transcript of the trial proceedings, and determines whether the trial court committed an error.


        Usually, appellate courts do not look at the questions of fact (such as whether a party did, in fact, commit a certain action, such as burning a flag) but at questions of law (such as whether the act of flag-burning is a form of speech protected by the First Amendment to the Constitution). Only a judge, not a jury, can rule on questions of law. Appellate courts normally defer to a trial court’s findings on questions of fact because the trial court judge and jury were in a better position to evaluate testimony—by directly observing witnesses’ gestures, demeanor, and nonverbal behavior during the trial. At the appellate level, the judges review the written transcription of the trial, which does not include these nonverbal elements.


        An appellate court will challenge a trial court’s finding of fact only when the finding is clearly erroneous (that is, when it is contrary to the evidence presented at trial) or when there is no evidence to support the finding. If a jury concluded that a manufacturer’s product harmed the plaintiff but no evidence was submitted to the court to support that conclusion, the appellate court would hold that the trial court’s decision was erroneous.


c. State Supreme (Highest) Courts 州最高法院

        The highest appellate court in a state is usually called the supreme court but may be called by some other names. For example, in both New York and Maryland, the highest state court is called the court of appeals. The decisions of each state’s highest court on all questions of state law are final. Only when issues of federal law are involved can a decision made by a state’s highest court be overruled by the United States Supreme Court.


2. The Federal Court System 联邦法院体系

        The federal court system is basically a three-tiered model consisting of (1) U.S. district courts (trial courts of general jurisdiction) and various courts of limited jurisdiction, (2) U.S. courts of appeals (intermediate courts of appeals), and (3) the United States Supreme Court.


        Unlike state court judges, who are usually elected, federal court judges—including the justices of the Supreme Court—are appointed by the president of the U.S. and confirmed by Senate. All federal judges receive lifetime appointments (because under Article 3 they “hold their offices during Good Behavior”).


a.     U.S. District Court 美国联邦区法院

        At federal level, the equivalent of a state trial court of general jurisdiction is the district court. There is at least one federal district court in every state. The number of judicial districts can vary over time, primarily owing to population changes and corresponding caseloads. Currently, there are ninety-four federal judicial districts.


        U.S. District Courts conduct trials concerning federal matters, such as federal crimes and enforcement of federal statutes. Most federal crimes involve crimes against the government or crimes occurring on federal property. For example, one crime, kidnapping, is a federal crime even though it does not occur on federal land. Federal jurisdiction for the crime of kidnapping is based on taking of the victim across state or country lines and the statute provides that the failure to release the victim within twenty-four hours after seizure creates “a rebuttable presumption that such person has been transported to interstate or foreign commerce.”


         Moreover, it is possible to sue a federal court even though the claim is based on state law when the plaintiff and defendant are from different states and countries. Diversity of citizenship jurisdiction exists when a plaintiff is a citizen of one state and the defendant is a citizen of another state, or when one party is a foreign country or a citizen of a foreign country and the other is a citizen of the United States. The amount of claimed damages in a diversity of citizenship case must be at least $75,000.


        Also, there are other courts with original, but special (or limited) jurisdiction, such as the federal bankruptcy courts and others show in Exhibit3-1.


b.     U.S. Courts of Appeals 联邦上诉法院

        In federal court system, there are thirteen U.S. courts of appeals—also referred to as U.S. circuit courts of appeals. The federal courts of appeals for twelve of the circuits, including the U.S. Courts of Appeals for the District of Columbia Circuit, hear appeals from the federal district courts located within their respective judicial circuits. The Court of Appeal for the Thirteen Circuit, called the Federal Circuit, has national appellate jurisdiction over certain types of cases, such as cases involving patent law and cases in which the U.S. government is a defendant. Also heard before this court are appeals from specialized courts (e.g., the U.S. Claims Court and the U.S. Court of International Trade) and claims arising from decisions of federal administrative agencies.


c. The United States Supreme Court 美国联邦最高法院

        The highest level of the three-tiered model of the federal court system is the United States Supreme Court. According to the language of the Article 3 of the U.S. Constitution, there is only one national Supreme Court. All other courts in federal system are considered “inferior”. Congress is empowered to create other inferior courts as it deems necessary. The inferior courts that Congress has created include the second tier in our model—-the U.S. court of appeals—–as well as the district courts and any other courts of limited or specialized jurisdiction.


        The United States Supreme Court consists of nine justices. Although the Supreme Court has original, or trial, jurisdiction in rare instances (e.g. , in legal disputes in which a state is a party, cases between two states, and cases involving ambassadors), most of its work is as an appeals court. The Supreme Court can review any case decided by any of the federal courts of appeals, and it also has appellate authority over some cases decided in the state courts.


Appeals to the Supreme Court To bring a case before the Supreme Court, a party requests the Court to issue a writ of certiorari. A writ of certiorari is an order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review. The court will not issue a writ of certiorari unless at least four of the nine justices approve of it. This is called the rule of four. Whether the Court will issue a writ of certiorari is entirely within its discretion. The court is not required to issue one, and most petitions for writs are denied. (Thousands of cases are filled with the Supreme Court each year, yet it hears, on average, fewer than one hundred of these cases.) A denial is not a decision on the merit of a case, nor does it indicate agreement with the lower court’s opinion. When the Supreme Court declines review of a case, the practical effect is an agreement with the lower court decision, which continues binding the parties.