Legal practice is sometimes used to distinguish the body of judicial or administrative

precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...

rule Rule or ruling may refer to: Education * Royal University of Law and Economics (RULE), a university in Cambodia Human activity * The exercise of political or personal control by someone with authority or power * Business rule, a rule perta ...

s, policies,

custom Custom, customary, or consuetudinary may refer to: Traditions, laws, and religion * Convention (norm), a set of agreed, stipulated or generally accepted rules, norms, standards or criteria, often taking the form of a custom * Norm (social), a r ...

s, and

doctrine Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system ...

s from legislative enactments such as

statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...

s and

constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed. When ...

s which might be called "laws" in the strict sense of being commands to the general public, rather than only to a set of parties.

England from Henry II

Common law forms of pleading: Writs

In the legal practice that emerged in royal courts under Henry II any case had to fit into a narrowly defined form of pleading usually called a "writ". By the time of Henry III the number of such writs had grown to over 500, but even that many did not cover all the possible claims that people sought to make. The

Provisions of Oxford The Provisions of Oxford were constitutional reforms developed during the Oxford Parliament of 1258 to resolve a dispute between King Henry III of England and his barons. The reforms were designed to ensure the king adhered to the rule of law and ...

in 1258 forbade the royal clerks to create any new writs. The result of this was that the courts began to adopt "fictions" such as imaginary parties or actors so that the facts of a case could be fit within one of the established forms, and the Writ of Trespass came to become the catchall form for most claims. Unlike much current practice, the writs of pleading were not court orders granting relief but the summons, prepared by the plaintiff, filed with the court, and served on the respondent.

United States

U.S. Constitution

The non-conflicting parts of the English and American common law and its forms of pleading were explicitly incorporated into the U.S. Constitution. Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Field Code 1848

By the middle of the 19th century strong resistance developed to the rigidities of the common law forms of pleading brought over from England, whose monarchical forms often conflicted with U.S. republican law that made the people the

sovereign ''Sovereign'' is a title which can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin , meaning 'above'. The roles of a sovereign vary from monarch, ruler or ...

New York State New York, officially the State of New York, is a state in the Northeastern United States. It is often called New York State to distinguish it from its largest city, New York City. With a total area of , New York is the 27th-largest U.S. stat ...

was the first to adopt a codification of legal forms and procedures, called the

Field Code David Dudley Field II (February 13, 1805April 13, 1894) was an American lawyer and law reformer who made major contributions to the development of American civil procedure. His greatest accomplishment was engineering the move away from common ...

from its principal author,

David Dudley Field II David Dudley Field II (February 13, 1805April 13, 1894) was an American lawyer and law reformer who made major contributions to the development of American civil procedure. His greatest accomplishment was engineering the move away from common ...

. Within a few years, most but not all other states adopted similar codes. One of the reforms made was to unite courts of law and equity. The reforms made it easier to get a case started without loading most of the argument and proof at the outset, and made discovery more important during the course of the case. However, there was opposition to the reforms,Is Codification of the Law Expedient?, by William B. Hornblower. Address delivered before the American Social Science Association (Department of Jurisprudence) at Saratoga, N.Y., September 6, 1888
Link
/ref> and resistance from the legal profession, including judges, that prevented the codes from being implemented as intended.

Federal Rules 1938

Before the Federal Rules of Civil Procedure (FRCP) were enacted in 1938,

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

pleading was more formal, traditional, and particular in its phrases and requirements. For example, a plaintiff bringing a

trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery, wounding ...

suit would have to mention certain key words in his complaint or risk it being dismissed with prejudice. In contrast, the FRCP is based on a legal construction called

notice pleading In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjudi ...

, which is less formal, created and modified by legal experts, and far less technical in requirements. In notice pleading, the same plaintiff bringing suit would not face dismissal for lack of the exact legal term, so long as the claim itself was legally actionable. The policy behind this change is to simply give "notice" of your grievances, and leave the details for later in the case. This acts in the interest of

equity Equity may refer to: Finance, accounting and ownership * Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the dif ...

by concentrating on the actual law and not the exact construction of pleas. Thirty-five states have adopted versions of the federal rules as their own procedural code. In addition to notice pleading, a minority of states (''e.g.'',

California California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...

) use an intermediate system known as ''code pleading''. Code pleading is an older system than notice pleading and is based on legislative

. 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 Relief is a sculptural method in which the sculpted pieces are bonded to a solid background of the same material. The term ''relief'' is from the Latin verb ''relevo'', to raise. To create a sculpture in relief is to give the impression that the ...

. (FRCP 8(a)(2)). One important exception to this rule is that when a party alleges

fraud In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compens ...

, that party must plead the

fact A fact is a datum about one or more aspects of a circumstance, which, if accepted as true and proven true, allows a logical conclusion to be reached on a true–false evaluation. Standard reference works are often used to check facts. Scient ...

s of the alleged fraud with particularity. (FRCP 9(b)). There has been some controversy over whether the FCRP violate the Eighth Amendment requirement of common law rules, but the usual answer has been that the changes are only in form and not in substance.

References

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