What was the origin of procedure rules?

Question

I’m guessing that they started out much simpler and more rudimentary than they are now, before which they were probably non existent and it was just a case of a Lord of the court admitting parties of successive cases and hearing the cases of each before asking different sides questions as they liked before issuing a ruling and then it became necessary to formalise standard rules of procedure in the court room. But what did early forms of formal procedural rules look like and when when did they originate?

Answer 1

united-states

This is a short history of procedural rules in the United States.

Prior to the American Revolution, the colonies in North America that would become the United States followed the procedures of their home countries (mostly England, but in some places, the Netherlands, France, and Spain). English settlers developed a strong dislike and contempt for authoritarian leaning criminal procedure and tax laws imposed by England to keep them in line from far away London, and dumbed down civil procedures that didn't work in a less urbanized frontier society with fewer lawyers and smaller law libraries. These English colonies also disliked the delays that appeals to the Privy Council across the Atlantic Ocean from them could bring to their legal cases. The more objectionable practices would be jettisoned with the American Revolution, but since the English colonists didn't know any other way to conduct their legal affairs, they still used the English legal system as a starting point when necessity didn't force them to improvise to suit their local conditions and realities which were less sophisticated and learned and made common law rules that worked in England less suitable for their environment.

Procedural rules in the U.S. at the time of the American Revolution started with common law rules borrowed from English courts of law (equity procedure beyond the right or absence of a right to a jury trial never really caught on in the U.S., even though the U.S. received substantial substantive equity law), supplemented by court by court local court rules adopted sporadically by some courts with busy dockets.

The practice of law was not regulated at the state or national level at first, and was instead regulated informally on a court by court basis, with new lawyers trained by "reading law", i.e. by serving as apprentices in someone else's law office and reading legal treatises, statutes, and case law on their own with feedback from their masters.

In the mid-19th century, a set of civil procedure rules called the Field Code largely replaced this system in most, but not all, U.S. states, and the residual influence of this system remains as a gloss on the current rules of civil procedure. While these rules were more rigid and formalistic than the federal rules of civil procedure that would follow, they cut through an intricate and complex rule of common law pleading rules that often resolved cases based on obscure technicalities. One of its enduring impacts is its requirement that civil lawsuit claims be set forth in a serious of short paragraphs making allegations that were purely allegations of fact that conformed to the elements of a claim for relief on the theory upon which the person suing based their lawsuit. This time frame also coincided with a more complete fusion of the equity jurisprudence and law jurisprudence in U.S. courts, although some subtle distinctions remained. The states with statutorily codified court rules mostly codified their procedural rules in this era.

The main criminal procedure innovation of this era was the replacement of grand jury indictments with preliminary hearings in felony cases in most newly formed Western states.

In the 1870s, occupational licensing of lawyers (and the bar exam that went with it) began and the widespread use of law schools to train lawyers also commenced. Over the next few decades, more and more lawyers were trained in law schools, and fewer and fewer lawyers "read law" in a senior lawyer's office. The modern law school curriculum largely came into being at this time modeled in the courses taught at Harvard Law School.

In the 1890s century, the federal intermediate courts of appeal were created and the right to a direct appeal in federal criminal cases, rather than mere review by writ of habeas corpus was established. This greatly transformed the character of criminal procedure in the United States. Some state courts had already adopted this reform, and many other states swiftly replicated it. This is also around the time when local police departments, as opposed to local militias or night watches, became common. The criminal justice process became more professional at this time.

In the 1930s, the federal courts adopted the federal rules of civil procedure, which with amendments, remain in effect today in the federal courts. These were widely copied by most, but not quite all, state courts. New York State and California are two notable exceptions to this general trend. The main reforms of this system were "notice pleading" that required only a bare minimum of detail in documents filed to begin a civil lawsuit, and the availability of expansive discovery (in the form of document production, answers to written questions, and pre-trial examinations under oath of potential witnesses). It was a much more flexible and less formalistic system than the Field Code. This period also coincided with more widespread codification of substantive private law in the United States as state legislatures adopted model statutes to promote uniformity mostly on uncontroversial business law issues.

In the 1960s and 1970s, the U.S. Supreme Court started to apply many criminal procedure protections of the Bill of Rights to state and local governments more earnestly requiring reforms to state criminal procedure to accommodate these federal constitutional rules of criminal procedure. Institutionally, some of the more important innovations were the creation of a constitutionally mandated public defender's system and the widespread use of suppression hearings to screen prosecution evidence for violations of 4th Amendment search and seizure protections and 5th Amendment Miranda rights, as well as the establishment of comprehensive pre-trial discovery by the prosecution.

In the late 20th century, from about the 1960s on, a variety of reinterpretations of the federal rules of civil procedure and parallel state court civil procedure rules, made it much easier to dismiss some or all of a civil lawsuit in a pre-trial motion to dismiss or motion for summary judgment, in part, in reaction to the expenses associated with the much wider scope of discovery rights under the federal rules of civil procedure. The rate of which cases settled prior to trial also greatly increased in this time period. This also coincided with the much more widespread use of class action lawsuits, and with liberalizing standards for securing relief under substantive law and in jurisdictional rules, in private lawsuits. This was also a period of greatly relaxed probate case formalities in some states.

In the 21st century, some of the loose and flexible civil procedural rules in place since the 1930s (also in areas like jurisdiction) were tightened again, back in the direction of the Field Code and the jurisdictional rules of that era (although only partially), in response to the high costs and slow speed of civil litigation.

Criminal procedure meanwhile, has changed only modestly (mostly in the area of post-conviction collateral attacks on convictions which have become legally very intricate and harsh, and in death penalty jurisprudence, which has steadily constrained this punishment bit by bit) since the 1970s.