1st Restatement on Procedure

 
§ 584. Determination Of Whether Question Is One Of Procedure

The court at the forum determines according to its own Conflict of Laws rule whether a given question is one of substance or procedure.

§ 585. What Law Governs Procedure

All matters of procedure are governed by the law of the forum.

§ 592. Procedure In Court

The law of the forum governs all matters of pleading and the conduct of proceedings in court.

§ 594. Mode Of Trial

The law of the forum determines whether an issue of fact shall be tried by the court or by a jury.

§ 595. Proof Of Facts

(1) The law of the forum governs the proof in court of a fact alleged.

(2) The law of the forum governs presumptions and inferences to be drawn from evidence.

Comment:

a. Proof in court covers all matters falling within the description "burden of proof." This includes what is sufficient evidence on an issue of fact to entitle the jury to consider it. It includes the burden of going forward with evidence; also the question of which party bears the risk of non-persuasion of the trier of the fact. In some instances the proof of what is required by reference to the appropriate foreign law may make it unnecessary to apply the local procedural rule. Thus, if a requirement concerning proof of freedom from fault exists in the law of the place of injury and if such condition is there interpreted as a condition of the cause of action itself, or as affecting the nature or amount of recovery, the court at the forum will apply the rule of the foreign state (see § 385). In such a case, the remedial and substantive portions of the foreign law are so bound together that the application of the usual procedural rule of the forum would seriously alter the effect of the operative facts under the law of the appropriate foreign state. If there is no serious interference with the forum's legal processes involved, the court will apply the foreign rule as to freedom from fault and the conditions attached by that law thereto. If too great local inconvenience is thereby occasioned, the court at the forum may refuse to hear the case ... If the foreign rule as to contributory fault is thus applied in its entirety, there will be no occasion for the application of the local procedural rule as to this question, for it will have been settled under the application of the foreign rule.

Illustration:

1. A, in state X, is injured by the alleged negligence of B. A sues B in state Y. By the law of X, a plaintiff has no cause of action until he has shown that his own negligence did not contribute to his injury. By the law of Y, contributory negligence is an affirmative defense to be pleaded and proved by the defendant. A must show his freedom from contributory negligence.

b. Application of standards. The standard of conduct to be followed by a party is determined by reference to the appropriate law. In the case of torts, for example, if the law of the place of wrong is to the effect that a plaintiff can recover from one who has harmed him if the actor's conduct is negligent, the place where the actor's conduct occurs determines what the standards for negligence are. But the application of the standard necessarily is made in the proceedings at the forum. Thus, if by the law of a state where an act is done, a defendant is negligent if he fails to conform to a standard of conduct established by the law of that state, the law of the forum will determine whether there is sufficient evidence to take the case to the jury on the issue of whether the defendant so conformed to the standard. If, however, by the law of the place where the acts are done, the application of a standard of conduct has been narrowed, either by judicial decision or by statute, into a rule of law, the court at the forum will apply the rule so established to the facts as proved (see § 380).

Illustrations:

1. By the law of state X, a fact can be proved only by the testimony of two witnesses; by the law of state Y, it may be established by the testimony of one. In a court of Y in a suit on a claim arising in X, it becomes necessary to prove this fact. It may be done by the testimony of one witness.

2. By the law of state X, one must use due care before crossing a railroad track; by the law of state Y, one must stop, look and listen before doing so. A in X crosses a railroad track there without stopping and is struck by a train. A sues the railroad in Y. The court and jury will not apply their rule that one must stop, look and listen, but will decide whether on the evidence A used due care.

3. The law of the two states being as stated in Illustration 2, B crosses a railroad track in Y without stopping and is struck by a train. B sues the railroad in X, and offers evidence to show that he used due care in crossing the track. The evidence will be excluded, and judgment given for the railroad.

c. Presumptions. Presumptions attach certain procedural consequences to evidentiary facts. Presumptions which are made as a result of certain evidence and inferences drawn from evidence are parts of the proof of a case and to these the forum's own rules are applied. What is often called a conclusive presumption of law is not determined by this rule. Such so-called presumption is in reality a rule of substantive law stated in the form of a presumption. The court at the forum decides under its Conflict-of-Laws rule, whether a rule of substantive law or a presumption is involved in a given problem (see § 584).

Illustrations:

4. A ships goods by carrier in state X, receiving a printed bill of lading which contains a limitation of the carrier's liability for negligence of his servants. By the law of X, this evidence alone is not sufficient to prove that A assented to the terms of the bill; by the law of state Y an inference is drawn from the receipt of the bill without dissent that the shipper assented to the terms of the bill. A sues the carrier in Y for negligent loss. The facts stated being proved, the court holds that the liability is limited.

5. The same facts as in Illustration 4, except that the laws of the two states are reversed. A sues the carrier in Y and proves the facts. A recovers.

§ 596. Witnesses

The law of the forum determines the competency and the credibility of witnesses.

§ 597. Evidence

The law of the forum determines the admissibility of a particular piece of evidence.

§ 599. Integrated Contracts

When a contract is integrated in a writing by the law of the place of contracting, no variation of the writing can be shown in another state which could not be shown in a court in the place of contracting under the law of that state, whatever the law of the other state as to integrated contracts.

§ 603. Statute Of Limitations Of Forum

If action is barred by the statute of limitations of the forum, no action can be maintained though action is not barred in the state where the cause of action arose.

§ 604. Foreign Statute Of Limitations

If action is not barred by the statute of limitations of the forum, an action can be maintained, though action is barred in the state where the cause of action arose.

§ 605. Time Limitations On Cause Of Action

If by the law of the state which has created a right of action, it is made a condition of the right that it shall expire after a certain period of limitation has elapsed, no action begun after the period has elapsed can be maintained in any state.

§ 606. Limitation Of Amount Recoverable

If a statute of the forum limits the amount which in any action of a certain class may be recovered in its courts, no greater amount can be recovered though under the law of the state which created the cause of action, a greater recovery would be justified or required.

Comment:

a. Interpretation of statutes. Such a limitation is imposed only by a statute; and it is a question of interpretation whether the statute qualifies the cause of action, applying therefore only to a cause of action created by the statute, wherever sued on; or whether it is to be construed as limiting the amount of recovery in any action of the type described brought in the state, wherever the right was created; or whether (as in some instances) it has both effects.

Illustrations:

1. In a statute of state X, it is provided that in any suit brought under this statute for damages for death not more than five thousand dollars can be recovered. Action is brought in X for a death in state Y under a statute of Y by which ten thousand dollars may be recovered for death. The court interprets the statute of X as applicable only to causes of action arising under the statute of X, and holds that in this case the damages are not limited to the amount of five thousand dollars.

2. By a statute of state X, no more than five thousand dollars damages can be allowed in an action for the death of a human being. This has been interpreted by the courts of X to apply to all actions for death brought in X. A court in X will refuse to allow greater recovery than five thousand dollars for a death caused in state Y, whose statute has no such limitation.

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b. A limitation on the amount recoverable imposed by the state where the cause of action arose as a qualification of the cause of action is ordinarily a matter of the measure of damages (compare § 417).