Trials, Civil

A civil trial is a set of rule-bound procedures for gathering evidence in civil cases. The latter is a residual category of all cases outside of the criminal jurisdiction and more specialized jurisdictions such as bankruptcy or admiralty. Administrative adjudications and arbitrations, a numerically large category, are also generally not considered civil trials. Civil cases can yield a range of possible remedies, including money damages, civil penalties, restitution, and injunctive relief.

The dominant jurisprudence implicit in Western legal systems envisions the civil trial as the institutional device for establishing the rule of law, understood as the “law of rules,” in situations where there are disputes of fact. Broadly liberal and dominantly positivist regimes elevate the importance of preexistent standards, allowing citizens to determine whether a contemplated action will trigger the coercive effects of state power and what those effects will be. This means citizens can both avoid those coercive effects—by avoiding civil tort liability, for example—and harness state power to assist their purposes, in the enforcement of contracts, for example.

Positive law can accomplish none of these goals, however, without an institutional device for (1) accurately determining the nature, context, and effects of the citizen's action and (2) assuring that this action will be assessed by precisely the norms that are prescribed in the positive law. This is what the modern trial is thought to provide. Its rules and practices are justified as (1) providing the tribunal with an accurate picture of a past event and (2) framing that event in a form relevant to the substantive law known to the judge or communicated to the jury in instructions. In the Anglo American world, jurists understand rules of evidence to further these goals. Authenticating exhibits, screening expert testimony, and excluding some forms of hearsay evidence are thought to increase the likelihood that the evidence will be reliable in contexts where the jury is thought to be unable to determine reliability. Rules requiring testimony “in the language of perception” (the non-opinion rule) and the materiality of evidence (the commonsense or scientific link between each unit of evidence and an officially sanctioned norm in the substantive law) are designed to increase the likelihood that the trial will preserve the rule of law in situations where there are disputes of fact. By constricting the evidentiary base in this way, the trial's rules restrict the power of “life-world” norms elicited by legally irrelevant evidence to determine the outcome. In civil trials on the European mainland (called the continental system), the jury is replaced by a professionally socialized judge, with the result that such rules are thought less necessary. Continental inquisitorial systems generally adhere to a system of “free proof” relatively unstructured by evidentiary rules.

In the United States, several of the underpinnings of this “received view” of the trial have been challenged as inconsistent with the constitutional status of the jury and with the actual operations of jury trials. The received view is consistent with a discredited empiricism, holding that determinations of fact can be built up from reports of normatively unvarnished perceptions. It relies on a distinction between fact and norm that is more rigid and less provisional than warranted. It ignores the historically and constitutionally well-rooted political and moral dimensions of trial decision making. It ignores the normative significance of the narrative and performative aspects of the trial. Of course, the normative and political questions concerning the legitimacy of these more political and holistic modes of social ordering are contested.

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