The Integration of Law and Fact in an Uncharted Parallel Procedural Universe

Abstract

In this Article we suggest that there are two distinct yet related systems that simultaneously process civil litigation. One of these is the formal system of procedural rules and doctrine that govern pleadings and motion practice in state or federal courts. The other system has no procedural rulebook, is largely ignored in law schools, and is seldom mentioned by judges. Yet it is a methodical and logical system that civil litigators are aware of and, increasingly, rely upon as a necessary complement to the formal system. This dichotomy poses an interesting challenge for federal practice and procedure in the new century.

This Article is both descriptive and normative. We describe what we have learned about the parallel procedural universe; we also suggest that if this phenomenon of lawyer utilization of non-rule prescribed advocacy materials is in fact taking place and growing, as we surmise, it is a positive development in civil litgation. In Part I, we examine the integration of law and fact in the context of formal procedural systems. In Part II, we offer examples of integrated advocacy statements from the parallel procedural universe, and explore why and how we think that universe is developing. And finally, in Part III, we ponder some of the implications and repercussions of this expanding parallel universe.