Civil Procedure 2018

[Hebe Zuelke]

Civilprocedure is the body of law that sets out the rules and regulations along with some standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what kind of service of process (if any) is required; the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases; the timing and manner of depositions and discovery or disclosure; the conduct of trials; the process for judgment; the process for post-trial procedures; various available remedies; and how the courts and clerks must function.

In most cases, criminal prosecutions are pursued by the state in order to punish offenders, although some systems, such as in English and French law, allow citizens to bring a private prosecution. Conversely, civil actions are initiated by private individuals, companies or organizations, for their own benefit. Government agencies may also be a party to civil actions. Civil and criminal cases are usually heard in different courts.

In jurisdictions based on English common-law systems, the party bringing a criminal charge (in most cases, the state) is called the "prosecution", but the party bringing most forms of civil action is the "plaintiff" or "claimant". In both kinds of action the other party is known as the "defendant". A criminal case against a person called Ms. Sanchez would be described as "The People v. (= "versus", "against" or "and") Sanchez", "The State (or Commonwealth) v. Sanchez" or "[The name of the State] v. Sanchez" in the United States and "R. (Rex, Latin for "King" but spoken as "The Crown") v. Sanchez" in England and Wales, amongst other Commonwealth realms. But a civil action between Ms. Sanchez and a Mr. Smith would be "Sanchez v. Smith" if it were started by Sanchez, and "Smith v. Sanchez" if it were started by Mr. Smith (though the order of parties' names can change if the case is appealed).[1]

Most countries make a clear distinction between civil and criminal procedure. For example, a criminal court may force a convicted defendant to pay a fine as punishment for their crime, and the legal costs of both the prosecution and defence. But the victim of the crime generally pursues their claim for compensation in a civil, not a criminal, action.[2] In France and England, however, a victim of a crime may incidentally be awarded compensation by a criminal court judge.

Evidence from a criminal trial is generally admissible as evidence in a civil action about the same matter. For example, the victim of a road accident does not directly benefit if the driver who injured them is found guilty of the crime of careless driving. The victim still has to prove his case in a civil action, unless the doctrine of collateral estoppel applies, as it does in most American jurisdictions.[2] The victim may be able to prove their civil case even when the driver is found not guilty in the criminal trial, because the standard to determine guilt is higher than the standard to determine fault. However, if a driver is found by a civil jury not to have been negligent, a prosecutor may be estopped from charging them criminally.

If the plaintiff has shown that the defendant is liable, the main remedy in a civil court is the amount of money, or "damages", which the defendant should pay to the plaintiff.[2] Alternative civil remedies include restitution or transfer of property, or an injunction to restrain or order certain actions.

The standards of proof are higher in a criminal case than in a civil one, since the state does not wish to risk punishing an innocent person. In English law the prosecution must prove the guilt of a criminal "beyond reasonable doubt"; but the plaintiff in a civil action is required to prove his case "on the balance of probabilities".[2] Thus, in a criminal case a crime cannot be proven if the person or persons judging it doubt the guilt of the suspect and have a reason (not just a feeling or intuition) for this doubt. But in a civil case, the court will weigh all the evidence and decide what is most probable.

These rules apply to all civil cases in the magistrate courts of the State of West Virginia. These rules supplement, and in designated instances supersede, the statutory procedures set forth in Chapter 50 of the West Virginia Code. The purpose of the rules is to help resolve cases in a just, speedy, and inexpensive manner.

(a) If the defendant alleges that another person, who is not named as a party in the case, is wholly or partially responsible for the damages set forth in the complaint, the defendant may file a third-party complaint against such person. No filing fee shall be required.

(b) A third-party summons and complaint shall be served upon the third-party defendant in the same manner as an initial summons and complaint. A third-party complaint shall be answered in the same manner as is provided by Rule 4.

(2) 5 days after service of the summons and complaint in cases involving expedited proceedings such as actions for unlawful entry and detainer and wrongful occupation. When the right to a jury trial is asserted in a case involving an expedited proceeding, the trial shall be scheduled as soon as a jury panel can be assembled.

Upon request by any party, the magistrate may permit the filing of an amended pleading, or amendment by interlineation, at any stage of the proceeding and upon such terms as may be just. Upon request, the magistrate may also permit the filing of supplemental pleadings asserting claims or defenses which have arisen since the date of the pleading to be supplemented. Permission to file an amended or supplemental pleading shall be freely given, and may be done with or without a hearing. Continuances to meet new matter asserted by way of amended or supplemental pleadings shall be granted if necessary to avoid surprise or other prejudice to the opposing party.

(3) If the office is closed or the person to be served has no office, leaving it at the person's usual place of abode with some member of the person's family above the age of 16 years.

(a) A magistrate shall enter judgment by default against a defendant when it appears from the record that the defendant has been served with the summons and complaint in accordance with these rules and has failed to appear or to answer within the time provided in Rule 4, and the plaintiff submits either an affidavit or sworn testimony stating:

(b) In the event that the plaintiff's claim is not for a sum certain, or for a sum which can by computation be made certain, the magistrate shall require further proof by affidavit or sworn testimony as is necessary to determine the propriety of the relief sought.

(c) A default judgment may be obtained in a similar manner against any party that has been served, in accordance with these rules, with a copy of a counterclaim, cross-claim, or third-party complaint, and has failed to appear or otherwise defend as required by these rules.

(d) No default judgment may be entered against a party who is an infant, an incompetent, or an incarcerated convict unless such person is represented by a guardian, committee resident, or guardian ad litem.

(1) Produce and permit the inspection and photocopying by the moving party of any designated documents or records or tangible items which contain relevant evidence which are not privileged, and which are in the possession, custody or control of the party from whom production is sought; or

(2) Permit entry upon designated land or other property in the possession or control of a party for the purpose of inspecting, measuring, surveying or photographing the property if the subject matter is relevant to the pending action.

(2) A defendant placing the defendant's physical condition in issue by way of defense or otherwise may similarly be ordered to submit to an examination, upon motion of the plaintiff.

(3) Notice shall be given to the party to be examined and to all other parties and shall specify the time, place, manner, conditions and scope of any such examination and the person or persons by whom it is to be made.

(4) If requested by the person examined, the party causing any such examination to be made shall deliver to the person examined a copy of a detailed written report of the examining physician setting out the physician's findings and conclusions.

(5) After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same physical condition.

(6) If the party examined refuses to deliver such report, the court on motion and hearing may order delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude the physician's testimony if offered at the trial.

(1) Order that the matters regarding the character or description of the property or the contents of the paper, or the physical condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(2) Refuse to allow the disobedient party to support or oppose designated claims or defenses, or prohibit such party from introducing in evidence designated documents or items of testimony, or from introducing evidence of physical conditions; or

(2) Condition denial of the motion to quash upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

When the magistrate dismisses an action under this rule, the clerk shall immediately notify all parties who are not in default and their counsel of record that a judgment has been entered. The notice shall be mailed to the last address on record for each such party, and shall state that any dissatisfied party may move to set aside the judgment in accordance with Rule 17.

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