The Process Acts of 1789 and 1792 did not expressly address the problem of what procedural laws to apply in the federal courts in new states that joined the Union after the original Thirteen Colonies.
Because the evolution of the forms of action was severely limited by the Provisions of Oxford (1258), pleaders had to resort to awkward workarounds such as legal fictions which had become quite ludicrous by the 19th century.
For example, the traditional form of action for trover was originally intended for finders, keepers situations (i.e., the plaintiff accidentally lost some property, then the defendant found it and wrongfully kept it), but was gradually expanded to many other kinds of improper takings of others' property—which are now known as conversion.
[8] As of that same year, common law pleading despite extensive statutory modifications remained the dominant procedure in 13 states, the Territory of New Mexico, and the District of Columbia.
[10] Before him, an earlier generation of American lawyers like Joseph Story had always conceived of "pleading" and "practice" as two separate but related bodies of procedural law.
[10] By the late 19th century, lawyers were becoming very frustrated with having to follow procedures that had been obsolete in their states for decades every time they litigated actions at law in federal courts.
Frustration with the status quo caused the American Bar Association to launch a nationwide movement for reform of federal civil procedure in 1911.
[14] After years of bitter infighting within the American bench and bar,[15] the federal procedural reform movement culminated in the enactment of the Rules Enabling Act on June 19, 1934.
[17] This article in turn inspired U.S. Attorney General William D. Mitchell to write a letter to Chief Justice Charles Evans Hughes in favor of procedural reform.
[20] Other prominent persons who were appointed later to the Advisory Committee included George W. Pepper, Samuel Marion Driver, and Maynard Pirsig.
The FRCP drafters were heavily influenced by the elegance of civil procedure in certain code pleading states, particularly California and Minnesota.
[25] The FRCP also introduced a number of innovations such as Rule 16 pretrial conferences, which gave judges a method for managing caseloads more aggressively and urging parties to reach settlements.
[26][27] The ABA and numerous other groups lobbied for some kind of committee to take over the task of maintaining the FRCP and other federal procedural rules.
[27][28] In 1958, Congress amended the act creating the Judicial Conference of the United States so that it would have the power to advise the Supreme Court about revisions to procedural rules.
A consequence of the above patchwork of historical imitations and amendments is the countless procedural differences between state and federal courts across the nation.
In supplementing the FRCP to provide a comprehensive set of rules appropriate to state law, several states took advantage of the opportunity to impose intrastate uniformity of civil procedure, thereby cutting down on the ability of trial court judges in rural areas to trip up big city lawyers with obscure local rules and forms, and in turn improving the portability of legal services.
In the last situation, out-of-town attorneys and pro se parties are at a severe disadvantage unless the district court's uncodified customs have been expressly documented in legal treatises, which is not always the case for smaller states.
However, Congress has been unable to complete the unification of federal civil procedure in a fashion that would be satisfactory to judges and lawyers in all states.
A study of the federal district courts in the mid-1980s found that they had developed a broad range of approaches to filling in the critical gaps in the FRCP.
The draft bill encountered a frosty reception from judges and lawyers throughout the United States, as everyone feared that their own favorite local procedure might fall victim to such a standardization process.
Thus, by fixing the most archaic and frustrating parts of their procedural systems, they have obviated the need for complete reform, which would also necessitate retraining all their lawyers and judges.
Note that the following states do not have a single code or set of civil procedure rules for their trial courts: Delaware, Indiana, Maryland, New Hampshire, New Mexico, Rhode Island, and Washington.