Civil Procedure Review

[Ara Kistner]

BACKGROUNDPursuant to Article VIII Section 3 of the West Virginia Constitution, the Supreme Court of Appeals of West Virginia "shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all the courts of the State relating to writs, warrants, process, practice and procedure, which shall have the force and effect of law."

CONTENTS: This page contains links to current rules and forms, and is divided into five sections: Supreme Court Proceedings, Circuit Court Proceedings, Family Court Proceedings, Magistrate Court Proceedings, Rules Governing Lawyers and Judges, and Miscellaneous. To review the orders issued by the Court relating to rules, please refer to the Recent Rules Orders page. To review rules that are currently subject to comment, please refer to the Requests for Public Comment page.

Rules of Civil Procedure - EFFECTIVE on or before December 31, 2024: These rules govern the procedure in courts of record in all actions, suits, or other judicial proceedings of a civil nature whether cognizable as cases at law or in equity, with the qualifications and exceptions stated in Rule 81.

EFFECTIVE JANUARY 1, 2025: Amendments to the Rules of Civil Procedure. On January 31, 2024, the Supreme Court of Appeals of West Virginia adopted amendments to the Rules of Civil Procedure. To review the order adopting the amendments, click here.

Rules of Practice and Procedure for Financial Exploitation Civil Proceedings: These rules govern financial exploitation civil proceedings in the circuit courts and magistrate courts of the State of West Virginia, pursuant to West Virginia Code 55-7J-1 et seq. The purpose of these rules is to help resolve financial exploitation cases in a just, speedy, and inexpensive manner.

Rules of Criminal Procedure: These rules govern the procedure in all criminal proceedings in the circuit courts of West Virginia, as defined in Rule 54(c); and whenever specifically provided in one of the rules, to criminal proceedings before West Virginia magistrates.

West Virginia Trial Court Rules: The Trial Court Rules relate to court administration, as well as civil and criminal matters, and are intended to supersede matters that were previously covered by various local rules. The Trial Court Rules also cover topics such as the procedure for filing a motion to disqualify a judge, electronic filing, and mass litigation.

Rules Governing Post-Conviction Habeas Corpus Proceedings: These rules set forth the procedure for post-conviction habeas corpus proceedings governed by West Virginia Code 53-4A-1, et seq. For petitions filed in any circuit court of the state, all of the rules apply. For petitions filed in the Supreme Court of Appeals, only Rule 2 applies.

Rules of Procedure for Administrative Appeals: These rules govern the procedures in all circuit courts for judicial review of final orders or decisions from an agency in contested cases that are governed by the Administrative Procedures Act, W. Va. Code 29A-5-1 et seq. These rules do not apply to extraordinary remedies such as certiorari which are governed by Rule 71B(a) of the West Virginia Rules of Civil Procedure.

Rules of Practice and Procedure for Minor Guardianship Proceedings: These rules set forth procedures for circuit court and family court minor guardianship proceedings instituted pursuant to W. Va. Code 44-10-1, et seq. These rules have no application to proceedings involving settlement of a minor's claims for damages for injury to person or property. The procedures for such proceedings are governed by the Minor Settlement Proceedings Reform Act codified at W. Va. Code 44-10-14.

Rules of Practice and Procedure for Domestic Violence Civil Proceedings: These rules govern domestic violence civil proceedings in the circuit courts, family courts, and magistrate courts of the State of West Virginia.

Forms for Conservator/Guardian Matters: The forms listed in this inventory were prepared for the West Virginia Supreme Court of Appeals for use in conservator and guardian cases in the circuit courts of West Virginia under the provisions of West Virginia Code 44A- 1-1, et seq., which became effective on June 10, 1994, and has been subsequently amended. At present, there is no statutory mandate for the use of these forms and the circuit courts have the option either to use the forms as presented, to modify or adapt these forms, or to use forms or formats different from those contained here.

Rules of Procedure for Child Abuse and Neglect Proceedings: These rules set forth procedures for circuit courts in child abuse and neglect proceedings instituted pursuant to W. Va. Code 49-4-601, et seq.

Approved Revisions effective January 1, 2016- Order

Rules of Juvenile Procedure: The Rules of Juvenile Procedure govern the procedures in the courts of West Virginia having jurisdiction over delinquency and status offense matters and apply to both delinquency and status offense proceedings except where otherwise specified or limited. The amendments to the Rules provided herein become effective January 1, 2016.

Rules of Practice and Procedure for Family Court: These rules govern all proceedings in Family Court with the exception of domestic violence civil proceedings unless specifically referenced in these rules.

Rules of Civil Procedure for the Magistrate Courts of West Virginia: 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.

Rules of Criminal Procedure for the Magistrate Courts of West Virginia.: These rules govern the procedure in all criminal proceedings in the magistrate courts of the State. These rules supplement, and in designated instances supersede, the statutory procedures set forth in Chapter 50 and Chapter 62 of the West Virginia Code.

INTEREST ON JUDGMENTS: Pursuant to the provisions of West Virginia Code 56-6-31, and an Administrative Order of the Supreme Court of Appeals of West Virginia, please be advised that the interest rate, including pre-judgment interest, for judgments and decrees entered during the year 2024 is 8.00%.

RE: Declining to Issue Rules Governing Statewide Licenses to Engage in the Business of Issuing Surety Bonds in Criminal Cases: By order issued November 25, 2009, the matter before the Court pursuant to House Bill 4148, which passed on March 13, 2004, and amended W.Va. Code 51-10-8, relating to the qualifications of bondsmen.

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and informal. Norms shape every aspect of the litigation system, from the division of labor between state and federal judges, to the application of Rule 11 sanctions, discovery technology, and multidistrict litigation. Yet the field of civil procedure has not fully grappled with these procedural norms in a systematic way nor appreciated the power of norm-making to resolve current problems.

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 scholars and teachers not only to incorporate state courts into their understanding of procedure, but also to look at procedure through the lens of lawyered courts and lawyerless courts. While the state/federal divide is a logical one for studying many subjects, including some civil procedure stalwarts like subject matter jurisdiction, the lawyered/lawyerless distinction provides additional and important insights about American civil justice and procedure.

Thus, for each topic, this Essay considers the related federal civil procedure and state civil court scholarship on these issues and identifies the similarities and differences between their manifestations in lawyered and lawyerless courts. These comparisons reveal important insights about the role of lawyers, the potential for reform, and the limits of procedure.

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