Civil litigation is the field of law dealing with how the U.S. court system is structured and organized, and the court processes that cases go through, from beginning to end. It consists of both statutes and rules. For the most part, court structure is determined by statute and the processes of cases in the courts are determined by rules, such as the Federal Rules of Civil Procedure.
While the legal system covers criminal and administrative law as well, we will be focusing on the court processes of civil cases.
The American Court System
The United States has a unique court system in that it is divided between a federal system covering the whole country and independent systems in each state and US territory. The systems can cover the same grounds in criminal, civil and administrative law. For instance, there are both federal and state laws against murder, lawsuits can be brought by the same people against the same people in both state and federal court and both the federal and state government regulate things like securities and the environment. The running of these two parallel systems simultaneously on the state and federal levels is known as “federalism.”
While the systems are parallel, under the Constitution’s “supremacy” clause, federal laws are the “supreme law” of the land, which means they control over contrary state laws. This also means that a ruling by the U.S. Supreme Court must be followed by every state and every court in the country. However, where the federal government is not authorized to act by the Constitution or where it does not act, state law applies under the “reserve” clause of the 10th Amendment.
The federal court system was established by Article 3 of the Constitution, but new judges and courts are established by Congress and the President. State court systems are established by state law or state constitution.
The details of the structure of the federal court system was the first order of business of the first US Congress, which passed the Judiciary Act of 1789 as Senate Bill 1. That Act created the federal judiciary system still in use today. The original federal judicial system consisted of a Supreme Court with six Justices, three appeals courts, each presided over by two Supreme Court justices and a district court judge and 13 trial courts, each presided over by a district judge.
Over the years, the numbers of courts and judges have changed with the growth and shifting of populations. Today, the federal judicial system consists of the Supreme Court with nine justices, thirteen circuit courts of appeal (11 geographic circuit courts, the D.C. Circuit court and the Federal Circuit) and 94 district courts. There are also a number of specialty courts of limited jurisdiction.
The 94 district courts are scattered across the country, with each state and territory having between one and four districts. In districts with large populations, one district court may have offices, courtrooms and judges in multiple locations. For instance, the Northern District of Ohio court has locations in Cleveland, Toledo, Akron and Youngstown. Each federal district also has a bankruptcy court.
Congress also created several “Article I,” or legislative courts, that do not have full judicial power. These include the Court of Appeals for Veterans Claims, the Court of Appeals for the Armed Forces and Tax Court. There are also military courts and tribunals that are not part of the federal court system under Article III.
The sets of rules that determine how a case goes through the court system are called rules of civil procedure. In federal court, those are the Federal Rules of Civil Procedure, while states have their own codes or rules. Local courts may also write their own additional rules, which are usually published on the courts’ websites.
Federal courts of appeals are geographically placed to accommodate appeals from the district courts. For example, the Second Circuit Court of Appeals covers federal courts in New York, Vermont and Connecticut, while the Eleventh Circuit covers federal courts in Florida, Alabama and Georgia. Each appellate court has several judges, though the circuits vary in numbers of judges, based on how much territory they cover. The Ninth Circuit, covering most of the far western part of the country, features the largest number of judges.
Courts of appeals typically sit in three-judge panels, but can agree to hear a case (or reconsider a decided case), en banc, which means that all judges in the Circuit hear the case simultaneously and vote on the decision. Cases decided by federal courts of appeals can only be appealed to the United States Supreme Court.
All federal judges are appointed by the President and confirmed by the Senate. They enjoy life tenure unless removed by congressional impeachment.
State Court Systems
State courts are independent of federal courts, except that they must follow decisions of the US Supreme Court on matters of federal law. They need not follow precedent from federal appeals or trial courts. Note that state court decisions cannot be appealed to federal court (except for the Supreme Court), though state court actions are sometimes reviewed by federal courts in criminal cases based on applications in federal court for writs of habeas corpus. Except for the Supreme Court, federal courts are not considered “higher” than state courts. Rather, they are parallel systems.
States also generally follow three-tiered courts systems consisting of the trial court level, the appellate court level and the state supreme court level. However, in state systems, there are more local courts of special and limited jurisdiction than on the federal level (such as family court, probate court, traffic court, etc.). Depending on the court and the state, judges may be appointed, elected or selected by panels or other judges.
Municipal courts, which are local courts that are parts of their state court systems, handle traffic cases, small claims, misdemeanors. Some localities set up special courts to handle specific matters, such as domestic violence or misdemeanor drug cases. Some cities, towns and villages have mayor’s courts, Justices of the Peace and other smaller courts. These typically have very limited jurisdiction.
County-level courts are often called “superior” (or in New York, “supreme”) courts because they are “superior” to these local courts. These are typically state courts of general jurisdiction that handle criminal cases and larger civil cases. They also may have divisions, including domestic relations, probate, veterans’, drug and juvenile divisions.
All states also have intermediate appellate courts, which are laid out geographically in a similar manner to federal appellate courts. They are usually called “courts of appeal” or “appellate divisions.” State appellate courts take appeals from their states’ trial courts.
All states have an appellate court of last resort, which functions as a state supreme court. Most of them are called the “supreme court” of the state, though the titles may vary, while some states have separate “supreme” courts for civil and criminal cases.
Usually, state supreme courts have discretion to determine which appeals they want to hear. In this way, they are similar to the US Supreme Court, which accepts cases at its discretion by the process that we’ll discuss shortly.
The Role of the Supreme Court
The United States Supreme Court is the highest court in the country. Its decisions on all matters involving federal or constitutional law are final. Supreme Court justices are appointed by the President for life with the advice and consent of the Senate and can be removed only by impeachment. The Supreme Court has appellate jurisdiction over all US courts, state and federal, and original (trial) jurisdiction over some cases.
Under the US Constitution and the Judiciary Act of 1789, the Supreme Court has original jurisdiction over cases between states, cases between states and foreign governments, issues involving ambassadors and foreign public officials and some other cases. Most original jurisdiction Supreme Court cases involve actions between states. For example, in the 1998 case, New York v. New Jersey, the Supreme Court held a trial and determined that most of Ellis Island belongs to New Jersey.
A 1794 case, Chisolm v. Georgia, sparked the passage of the 11th Amendment when the Supreme Court ruled that it had original jurisdiction when a citizen of one state sued another state. The 11th amendment was passed to prevent states from being subject to lawsuits in the Supreme Court or any federal court in many cases.
The main function of the Supreme Court, though, is its appellate jurisdiction. As the court of last resort, the Supreme court can only hear appellate cases from either federal appellate courts or the highest available state courts (usually the state supreme courts). If the appeal comes from a state court, the Supreme Court may only rule on the basis of federal or Constitutional law. If a case requires an interpretation of a state law, the Supreme Court can “certify” a question to a state supreme court, asking it to advise on the relevant matter of state law.
The Supreme Court decides to accept or reject cases through a complex process called certiorari. Because the Court’s time is limited, and its jurisdiction is so broad, it can accept only about 2-3% of cases appealed to it. Thus, the Court generally accepts cases that have national significance, can resolve conflicts over decisions in the circuit courts and those on important constitutional or legal issues.
The appealing party first files a petition for a “writ of certiorari” with the Court. This petition usually includes a brief filed with the Court detailing why the petitioner thinks that the Court should hear the case. Certiorari is granted if four of the nine Justices agree to take the case. The decision to grant or deny certiorari is usually published in one or two sentences without comment or, when granting cert, sometimes giving a brief reason.
If granted, this writ orders the lower court to send the record of the case to the Supreme Court. The Supreme Court reviews the record and sets a schedule for briefs and, in some cases, oral arguments. The parties each write briefs arguing their positions and many important Supreme Court cases are accompanied by briefs filed by interested outside parties called amicus curiae, or “friends of the Court.”
After the case is argued, the Court renders a decision in an Opinion. Opinions are published in the official “United States Reports” and other commercial publications.
An application for an emergency action (such as a stay of execution) may be addressed to any justice. Each of the federal appellate courts is assigned to a Justice, who considers emergency appeals from that court.
There are three general criteria that the applicant normally must satisfy in order for the Justice to grant a stay:
- There is a “reasonable probability” that four Justices will grant certiorari,
- There is a “fair prospect” that a majority of the Court will conclude upon review that the decision below on the merits was erroneous; and
- irreparable harm will result from the denial of the stay.
- In a close case, the Circuit Justice may find it appropriate to balance the equities, by exploring the relative harms to the applicant and respondent, as well as the interests of the public at large. 
If the emergency application is accepted by the Justice, it goes to the full court.
Jurisdiction and Venue
Jurisdiction and venue are terms that describe the power of a particular court to hear a particular case. A court is a legal deliberative body created by statute and so has power to administer justice only within the defined area of its responsibility. The jurisdiction of a court is found in whatever law created that court. Jurisdiction can be divided into two categories: subject matter and personal. Subject matter jurisdiction is the ability of the court to decide that type of case. Personal jurisdiction means the ability to determine the rights and responsibilities of the parties before it.
Subject Matter Jurisdiction
Some state courts (like county-wide trial courts) are courts of general jurisdiction, while others, like traffic and probate courts, are of limited jurisdiction.
Federal district courts have jurisdiction that is limited to two categories of cases. The first is where the cause of action depends on federal law. This is called “federal question” jurisdiction. Many federal statutes define types of federal cases that may be heard in federal court.
Federal trial courts also have jurisdiction in “diversity” cases, where a citizen or corporation of one state sues a citizen or corporation of a different state, and the amount in controversy is more than $75,000.
Sometimes, federal and state courts have concurrent, or shared, jurisdiction, where the lawsuit could be brought and heard either in federal or state court. Generally, either party can choose federal court in such cases. In some cases, though, federal district courts have exclusive jurisdiction, which means that cases may only be heard in federal court and not state court. These include admiralty and maritime cases, bankruptcy cases and many types of intellectual property cases.
By suing in a given court, the plaintiff implicitly agrees to subject himself to that court’s judgment. Thus, there is no need to justify personal jurisdiction over the plaintiff. However, a court may only exercise personal jurisdiction over the defendant if doing so does not “offend traditional notions of fair play and substantial justice” by forcing him to defend an action in a state with which he has little or no connection.
Personal jurisdiction can be based on:
n In personam, which means that the court has jurisdiction over the person because she has substantial connections with the state or there is some other basis upon which it is fair to expect the defendant to defend the action; or
n In rem, which means that the court has jurisdiction over the property that’s the subject matter of the action (as in the case of a dispute regarding ownership of land in the state).
“Venue” refers to the physical courtroom in which a trial takes place. It is defined as “the proper or most convenient location for trial of a case.” Most of the time, the proper venue is a court that is close to where the event took place that is giving rise to the court action, or at least a court in the same county or state in which the defendant lives or the events occurred.
However, there are some situations in which a party to the case may want to move for a change of venue. Issues of venue can come into play where a corporation with multiple locations is a party to the case, or where one party believes that the judge or jury may be prejudiced, where the case was filed in the wrong court or for other sound reasons. Courts can move cases to other venues at their discretion.
Choice of Law and the Erie Doctrine
Sometimes, there are different approaches taken by state courts or state law and federal courts on a given subject. While the intuitive thing might be to simply apply federal law in federal court and state law in state court, this approach could allow litigants to “forum shop” for the best available law and could cause laws to be inconsistently applied based on as random a factor as in which building the case is heard.
Thus, between the Judiciary Act of 1791, a landmark 1938 case called Erie Railroad v. Thompkins and a long line of cases since, rules have developed to ensure that the same laws are applied regardless of in which court the case is heard. Where cases are in federal court due to diversity of citizenship, therefore, and the grounds for the suit are based on state law, state law must be applied, even in federal court. Conversely, where federal law applies, it must be applied even in state court. For example, the Supreme Court ruled that in the interest of nationwide uniformity of banking law, federal courts had the authority to apply “federal common law” to cases involving negotiable instruments, thereby superseding contrary state law.
Note, though, that the Erie doctrine does not apply to procedural rules. So, even in cases in which state law dominates the proceedings, in federal court, the Federal Rules of Civil Procedure would govern the procedure of the case.
There are similar sets of rules to ensure that where the laws of two or more states are implicated, the applicable law should be the same, regardless of in which state’s courts the case happens to be brought.
In our second module, we’ll start looking at the nuts and bolts of civil litigation by discussing the pleadings that start civil cases and motions that are brought during or shortly after the pleadings stage.
 U.S. Const. art. VI.
 “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X.
 Court Role and Structure, U.S. Courts, http://www.uscourts.gov/about-federal-courts/court-role-and-structure (last visited Dec. 21, 2018).
 U.S. Dist. Ct., Northern Dist. Of Ohio, https://www.ohnd.uscourts.gov/ (last visited Dec. 21, 2018).
 Court Role and Structure, U.S. Courts, http://www.uscourts.gov/about-federal-courts/court-role-and-structure (last visited Dec. 21, 2018).
 State judge selection is a complex process. An interactive map of the process of selecting state supreme court justices is available here: “Judicial Selection: An Interactive Map,” Brennan Center for Justice, NYU School of Law, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Dec. 21, 2018).
 Appellate courts are called “Supreme Court—Appellate Division” in New York. Trial courts in New York are called “Supreme Courts”. Maryland calls this court the “Court of Special Appeals.”
 In the states of New York and Maryland and in the District of Columbia, the highest court is the “court of appeals.” In West Virginia, that court is the “Supreme Court of Appeals.” Oklahoma and Texas have two separate supreme courts. In both states, criminal cases are heard by the Court of Criminal Appeals, and civil cases are heard by the Supreme Court.
 U.S. Const. art. III, § 2.
 New Jersey v. New York, 523 U.S. 767 (1998).
 Chisolm v. Georgia, 2 U.S. 419 (1793).
 “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.
 A Latin word meaning “to be informed of, or to be made certain in regard to”.
 “Success Rate of a Petition for Writ of Certiorari to the Supreme Court,” Supreme Court Press, https://www.supremecourtpress.com/chance_of_success.html (las visited Dec. 21, 2018).
 Rule 10 (a), Rules of the Supreme Court of the United States.
 A Reporter’s Guide to Applications Pending Before The Supreme Court of the United States at 2-3.
28 U.S.C. § 1331.
 28 U.S.C. § 1332.
 28 U.S.C. §§ 1333, 1334, 1338.
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
 “Venue,” Law.com, www.law.dictionary.com (last visited Dec. 21, 2018).
 See Hanna v. Plumer, 380 U.S. 460, 467-68 (1965).
 Erie Railroad v. Thompkins, 304 US 64 (1938).
 Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943).
Guaranty Trust Co. v. York, 326 U.S. 99 (1945).
 “Conflict of Laws,” Cornell, https://www.law.cornell.edu/wex/conflict_of_laws.