Types of Law

The legal system usually distinguishes between procedural law and substantive law. Substantive law is also known as subject matter law. Subject matter areas of law are areas in which an attorney might specialize. For instance, contract law, tort law, elder law, and intellectual property law are just some of the many different subject matter areas within the study of law. Attorneys often choose to specialize in a particular area of law simply because there are so many areas of study within the law.

This section discusses the different types of procedural law. Procedural law deals with the processes that courts use to decide cases. Procedural areas of the law are designated to ensure due process, which means that all parties in a case are entitled to a fair and consistent process within the courts. There are three types of procedural law:

• Criminal
• Civil
• Administrative

Civil

Civil procedure deals with the procedures and processes that courts use to conduct civil trials. Civil trials concern claims between individuals. Substantive areas of law such as contract law and property law are civil law areas. The parties in these types of cases must follow civil procedure rules when bringing disputes to court.

In the federal courts, a case begins when a complaint is filed with the court. A complaint is a court document that sets forth the names of the parties and the facts and legal claims. This is how a lawsuit begins.

In the federal system, the rules outlining the civil trial process are found in the Federal Rules of Civil Procedure. These rules are made by the Supreme Court and approved by Congress. State courts also have rules for how civil trials are conducted. Often state rules are based upon the Federal Rules of Civil Procedure. These rules were last updated in 2018.

Most civil trial cases must be proven by a preponderance of the evidence. This is the lowest level of proof in a civil case. Preponderance of the evidence means that it is more probable than not that an action (or wrong) took place. Although it is simplistic to express this standard as a percentage, preponderance of the evidence means the probability of an action taking place is greater than 50 percent. Some civil cases, such as actions to terminate parental rights, use the “clear and convincing evidence” standard. To meet this standard, a party must convince a court that it is more likely than not that an action (or wrong) took place.

Criminal

Criminal procedure deals with the rules that courts follow in criminal law cases. It also includes the processes for investigating and punishing crimes. The federal and state governments have criminal codes. These codes specify the actions that constitute a crime.

Crimes are wrongs against society and are prosecuted by the government against an alleged wrongdoer. The federal or state official with the power to pursue criminal cases is called a prosecutor.

In the federal system, the rules outlining the criminal trial process are called the Federal Rules of Criminal Procedure. State courts also have rules for how criminal trials are conducted. Most states have rules that are modeled after the federal rules. Most criminal law cases are tried in front of a jury, which decides questions of fact. The judge’s role is to watch over the proceedings and decide questions of law.

The standard of proof for most criminal cases is beyond a reasonable doubt. This is the highest level of persuasion that a prosecutor must meet. This burden is met when a prosecutor proves to a jury that there can be no reasonable doubt in the mind of a reasonable person that a defendant is guilty. The reasonable doubt standard does not mean that the reasonable juror is 100 percent convinced that a defendant is guilty. It does mean, however, that a juror must be fully satisfied that reasonable doubt has been eliminated.

A government has such a high burden of proof to meet in criminal cases because a criminal penalty usually includes jail time, financial penalties, or even a death sentence. These penalties infringe on fundamental rights to liberty, property, and life. Therefore, a government may impose these penalties only with very strong proof that a person has committed the crime.

Administrative

Administrative procedure sets forth the process under which administrative agencies make and enforce rules. The federal government and most states delegate some regulatory and enforcement functions to administrative agencies. Governments delegate some of these functions in very detailed ways and for very specific reasons. When governments delegate power in this way, it is possible to have an agency that creates rules (a legislative function), enforces rules (an executive function), and reviews rules (a judicial power). Agency power is a combination of the power of all three branches of government.

The actions of these agencies are the focus of administrative procedure. Because these agencies are carrying out a function of the government, there must be processes put in place to ensure that all persons appearing before agencies are dealt with in a fair and consistent manner. At the federal government level, the Administrative Procedure Act (1946) helps define the federal administrative process. This act states the procedures for agency rulemaking, enforcement, and review.

The Administrative Procedure Act also allows U.S. federal courts to review agency decisions. There is a different burden of proof for administrative cases. In these cases, an administrative decision is valid so long as it is not “arbitrary and capricious” or an abuse of the law. An arbitrary and capricious decision is one made without a reasonable connection between the facts of the case and the administrative outcome.

FIGURE 3-3 shows the burden-of-proof hierarchy in administrative, civil, and criminal cases.