In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, for many aspects of procedure this breakdown can be misleading. Two different categories of courts are just as salient for understanding American civil justice: 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” and “lawyerless.” Lawyered courts 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. Lawyerless courts include all other state courts, which hear the vast majority of claims. This Essay argues that this categorization reveals fundamental differences between the two sets of court procedures and much about the promise and limits of procedure. The Essay also discusses how this dichotomy plays out in three of today’s most contentious topics in civil procedure scholarship: (1) written and unwritten proceduremaking, (2) the role of new technology, and (3) the handling of masses of similar claims. This categorization illuminates where and how lawyers are essential to procedural development and procedural protections. They also help us better understand when technology should assist or replace lawyers and how to reinvent procedure or make up for lawyers’ absence. Finally, they reveal that fixing court procedure may simply not be enough.
Civil Law | Civil Procedure | Law
Pamela K. Bookman & Colleen F. Shanahan,
A Tale of Two Civil Procedures,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3839
This article originally appeared in 122 Colum. L. Rev. 1183 (2022). Reprinted by permission.