Draw near! Give your attention to all that you must know to practice effectively in federal court. Whether a student or a seasoned lawyer, one can’t help but pause at all there is to know. The United States inherited many practices and traditions from England. Some survived the Revolution while others did not. The U.S. Constitution created the federal judiciary as a co-equal branch of government. Congress and the federal courts forged new laws and traditions which continue to evolve every day.
The novice is challenged at the outset by all the formal rules, established doctrines, and nuances of federal practice. Nonetheless, all practitioners are challenged to stay abreast of new federal statutes, new cases, evolving precedent, and rule refinements through time. Fortunately, two major treatises are available to power you along the learning curve: Federal Practice and Procedure (Wright and Miller) and Moore’s Federal Practice.
Which to choose? Both are available in print form at almost any law library. However, WestlawNext subscribers have exclusive access to Wright and Miller, while Lexis Advance subscribers have exclusive access to Moore’s. Either way, both treatises offer a comprehensive guide to federal court practice and procedural rules, along with commentary on cited authorities and historical analyses. The main differences are the overall organizational structure and how footnotes are formatted. These are insignificant for the most part. Users will hone their skills at using one or the other through practice.
Library shelves dedicated to the print edition of each treatise literally illustrate the volume of material confronting the federal court practitioner. Mercifully, the spines are well labeled and easy to follow. But researching complex topics having significant cross references would be cumbersome in print form. Both WestlawNext and Lexis Advance online databases allow rapid cross referencing and pursuit of research threads far more conveniently. The online researcher can move from either treatise to other authorities and content with each hyperlinked click. The ease of electronic research masks the organizational structure and the sheer volume of content. If relying on print editions, be sure to consult WestlawNext or Lexis Advance online to be sure you are relying on the most current law.
Who were these giants and how do we use the treatises that bear their name?
Federal Practice and Procedure (Wright and Miller)
Charles A. Wright (1927-2000) and Arthur R. Miller (1934- ) first authored and published this comprehensive treatise in 1969. Subsequent editions were published in 1987 and 2002. In updating earlier editions of Barron and Holtzoff’s Federal Treatise, Wright and Miller sought to continue serving lawyer’s practical needs. This treatise covers all manner of topics that could come up in a federal court: Criminal, Civil, Jurisdiction and Related Matters, Appellate Courts, the U.S. Supreme Court, Evidence, and Judicial Review of Administrative Action.
Federal Practice and Procedure consists of thirty-three hardbound volumes and requires 15 linear feet of library shelf space. Intervening pocket parts provide annual updates to particular sections of individually numbered volumes. The Quick Reference Guides will rapidly become those dog-eared, well-loved handbooks you reach for at the corner of your desk, time and time again.
The entire collection is organized into sections, numbered sequentially from 1 to 8500. Each section is broken down further into subsections. Tables of Content in each hardcover volume provide the road map and corresponding page numbers for that topic area. Footnotes provide case citations and other useful parenthetical commentary. The volumes are organized as follows:
- Volumes 1-3: Federal Rules of Criminal Procedure, Appendix, and Quick Reference Guide
- Volumes 4-12: Federal Rules of Civil Procedure, Admiralty and Maritime, and Quick Reference Guide
- Volumes 13-19: Jurisdiction and Related Matters, Rules of Appellate Procedure and Supreme Court Practice
- Volume 20: Federal Practice Deskbook
- Volumes 21-31: Federal Rules of Evidence and Quick Reference Guide
- Volumes 32-33: Judicial review of administrative action, with accompanying Appendices and Index
WestlawNext subscribers can easily locate Wright and Miller by searching “Wright and Miller” or “Federal Practice” from the main search bar. Watch for WestlawNext’s auto populate suggestions (see image below).
The first search suggestion, Federal Practice & Procedure, offers three choices. Drill down through each heading to find section numbers and hyperlinked content.
- Federal Practice and Procedure corresponds to Volumes 1-33 and the five major topic areas. The volume numbers, however, do not appear; but each numbered chaptercontains multiple sections corresponding with the print version content (see image to left; click to enlarge).
- Federal Practice Deskbook is the electronic analog to a well-tabbed quick reference guide for jurisdiction, venue, justiciability, removal, appellate courts, and the U.S. Supreme Court.
- Supplemental Service highlights the most recent updates. But this content is also incorporated in the main databases.
The second search suggestion, Federal Practice & Procedure Index, offers a Table of Contents. This alphabetized topical list is best searched using a “control find” (hold down the control button and type “F”). If you wish, look for the search bar in the upper right corner of your screen to enter your key term or phrase. Here, we see results for “Advisory Opinions” (see image to right; click to enlarge). Note the hyperlinked section numbers. Drill down to the next content level. Hover over the superscripts to read a footnote or click and navigate directly to it or the cited authority. Navigating from one section to the next is easy using the green triangles in the upper right corner. Feeling lost? Click on the Table of Contents in the upper right corner for a road map of where you are in the treatise. Need more? Consult the Citing References tab in the upper left corner to locate other materials which cite to Wright and Miller.
Moore’s Federal Practice
J. William Moore (1905-1994) was raised on a ranch near Bozeman, Montana. His intellectual capacity became apparent early in life and he entered Montana State College at the age of 14. The Montana College of Agriculture and Mechanic Arts was commonly referred to as Montana State College by the 1920s. After graduating, he worked as the chief Deputy clerk of the Montana District Court. Moore left Montana and earned his law degree from the University of Chicago, graduating first in his class. Moore briefly returned to practice in Montana, but left to pursue a graduate degree at Yale Law School.
While a doctoral student in 1935, he co-authored an article summarizing the history of federal practice and argued that rule reform should embrace a merge of law and equity. Late, U.S. Supreme Court Chief Justice Hughes announced that new federal rules would “unify the procedure for cases in equity and actions in law so as to secure one form of civil action and procedure for both.” Moore became the Chief Research Assistant to the Advisory Committee drafting the first version of the Federal Rules of Civil Procedure after passage of the Rules Enabling Act. He concurrently drafted Moore’s Federal Practice. Moore believed the rules should ensure that disputes were resolved on merit and not gamesmanship.
The treatise was first published in 1938, not long after the revised federal rules took effect. Four volumes grew to 31 by the 2013 third edition. Moore himself guided practitioners through the rules and various federal doctrines, and remained involved during subsequent updates until 1990. Now, a Board of Editors and invited contributors continue the long and strong tradition of historical analysis and commentary.
In print, Moore’s is commonly found as a loose leaf three-ring binder. It, too, requires significant library shelf real estate — 12 linear feet. Thirty-one volumes are divided into chapters, numbered 1-919. Each chapter typically has two parts: Rules and related commentary and a Historical Appendix. The Rules section includes text, details and commentary about the rules, including footnotes organized by Federal Circuit Practice and key U.S. Supreme Court decisions. The Historical Appendix includes the legislative history of each rule or doctrine, all committee notes since inception, and a historical analysis. The historical treatment is more comprehensive than Wright and Miller, owing to the fact that Moore himself was the chief researcher when the rules were first drafted and his ongoing involvement until four years before his death. The volumes are organized as follows:
- Volumes 1-14: Federal Rules of Civil Procedure
- Volumes 15-18: Federal Courts, jurisdiction, venue, various doctrines, judgments, and preclusion
- Volumes 19-20A: Federal Rules of Appellate Procedure
- Volume 21: U.S. Courts of Appeals and Index
- Volumes 22-23: U.S. Supreme Court
- Volumes 24-28: Federal Rules of Criminal Procedure
- Volume 29: Admiralty and Index
- Volume 30: Federal Law of Attorney Conduct
- Volume 31: Law and Practice of Arbitration
A comprehensive Subject Matter Index covers both the civil and criminal volumes providing an opportunity to find a subject and its cross referenced material throughout the treatise. An Annual Update binder contains monthly updates to content throughout the treatise.
Lexis Advance users can easily find Moore’s Federal Practice by typing “Moore’s Federal Practice” in the main search bar. Be sure to include the apostrophe and watch for auto populate suggestions (see image below).
Lexis Advance will suggest three choices: Moore’s Federal Practice — Civil, Criminal, and Update. Click on “View Table of Contents” first. If your finger instinctively hits the return key, Lexis Advance will produce an unwieldy number of results. Simply back up and re-type the original search term.
Click View Table of Contents under Moore’s Federal Practice — Civil. This displays the exact same volume number and chapters as the print edition (see image below; click to enlarge). Drill down to find progressively detailed content by clicking on the triangle icons to expand your choices. Once you see a listing of topics by section number, click the link to see the actual content information. Focus your research using the search bar at the top using key words. Results are cross-referenced by volume number and hyperlinked.
Navigate directly from the Table of Contents by clicking on any section number. Feeling lost? Consult the textual road map at the top of the page. Navigate within this Chapter using the Previous or Next buttons at the top of the page. Topic Summaries are sometimes available for a specific practice area. Footnotes are designed as pop-up windows with Rules or Case Citations and information parentheticals. These are linked for access to the source’s complete document. (See image top left; click to enlarge.)
Sooner or later, most practitioners will need to sharpen their knowledge about some aspect of federal practice. Both treatises are quite good and manageable. The choice will likely boil down to availability. Once you understand how each treatise organizes the material, you too can access the genius of these giants.