A Cynic's Guide to Civil Litigation; Chapter 4 - Rules Rule

I can say quite comfortably that there are rules that govern everything that happens in court. Every jurisdiction calls them by different names, but there are rules. “Jurisdiction” is just a fancy word for saying different states or different court systems within a state. While we are talking terms, the word "Venue", pronounced like "menu" with a "v", means a particular court within a particular jurisdiction or state or system. A good example might be that venue means your case will be heard in a city or town - the venue, within a county- the jurisdiction that has 10 cities or towns inside it. We often used the terms together, like “jurisdiction and venue”.

Customarily there are different sets of rules. This is not just because they needed to keep someone busy, or they wanted to create a job for somebody's kid. It is for efficiency. If we left what to do or how to do it up to each lawyer trying to get an advantage for their client, it would break down into chaos with every lawyer trying to get the upper hand…like filing something in secret so you don't know you are being attacked.

So, let’s take a moment to look at how rules are generally constructed.

The state legislatures are usually the first culprits. They created and will create the rules that govern civil practice statewide. They will also give other state government agencies the power to create other rules. They do this because they need to govern and to delegate responsibility. So, we end up with at least two different statewide rules. One general set is statewide, and another set regulates processes and procedures within an agency within a state. Now, this is a general statement of these statewide rules. Be aware, there may, and probably are, other subsets of rules in your state depending on what you are trying to accomplish, but as a start, this is a good way to look at things.

The first "go-to" set of rules are commonly called the "Rules of Civil Procedure", or the "Rules of Civil Process", or something like that. Without a doubt, the name of the state will precede whatever the rules are called like the "Massachusetts Rules of Civil Procedure." These rules are comprehensive and should guide you generally through the process.

You need to be aware that lawyers have been around for as long as any rules have been around. While it would be great to just read a rule and know what to do, lawyers, who are a pain in the ass, have challenged the "meaning" of rules, and the guys in the black robes, (Judges, not priests), have ruled on that "meaning". The bottom line is that after each rule, there is probably an explanation or explanations of what the rule "means". That explanation is usually called an "annotation", which just means an explanation or an abbreviate version of a ruling by a Court, and it explains the rule or some part of the rule a lawyer thought was important, confusing, or they were unhappy with.

You do not have to pay money to get these rules. If someone on the internet wants to charge you money to get access to these rules, you can tell them to pound sand. Your state will make them available for free, otherwise, it makes no sense to have them. (You could argue you didn't follow the rules because you couldn't afford to get them.)

There are, as I said, other sets or subsets of rules that govern the processes in your state. With a little bit more effort, you will find these other sets of rules, but, if you miss a set, I am certain you will learn about them at some point and the Court will probably give you a chance to comply with anything you missed. Courts are generally patient with people who act “pro se”.

The Code of Regulations is a good example of other rules. These are usually created by the Office of the Attorney General in your state, or by some other agency “enabled” by the legislature. Once again, they usually have the state name in the title somewhere, like “The Code of Massachusetts Regulations". These rules regulate the process for making a claim that is in the interest of the Attorney General. Some examples of areas of concern for the Attorney General might be payroll; you want to sue because you didn't get paid, or discrimination; you were discriminated against at work, or you were cheated when you bought your car.

Because the Office of the Attorney General in your state is supposed to protect people, many times you are required to go to the A.G. first, other times it is just a good idea. Let’s look at the payroll example I gave earlier. You believe you are owed money from your employer, and you have not been successful in getting paid. The Attorney General will be eager to and faster at collecting what you are owed. There is probably a statute or statutes, a code or codes, regulations, and laws that the A.G. can use against your employer. There is also some likelihood that you will need permission from the A.G. to sue your employer because the A.G. has the right to enforce payroll laws in your state. If you do not have that letter from the A.G. allowing you to sue, your case might get thrown out.

There are also “Local Rules” or “Rules of the Court”. Your state may call them by different names, but they are there to regulate the procedures for filing pleadings or appearing in court. For instance, a particular court rule may regulate how to go about filing a particular kind of motion, especially if the type of motion to be filed is usually large. Or a rule may regulate what kind of motion or how a motion is filed and heard when there is an emergency. These local rules are just as important as any other rule and if you miss complying with one, the clerk can just kick your filing out.

War Story

The Office of Attorney General is very serious when to comes to payroll. They have many statutes or rules that regulate payroll. Maintaining payroll in any state is a high priority.

Employers owe a former employee payroll regardless of how poorly the employee performed. If they were at the job, they get paid.

But, what about an employee who steals from you or commits fraud? This is where it can get foolish.

John owned a chain of local business that were labor intensive. His largest cost, as it is in most brick-and-mortar stores, was his payroll. He was also a target of activists because of his outspoken political opinions.

He had begun a program of hiring the disabled and less fortunate to balance the criticism and protests by the vocal minority. This program opened him up to activist “plants”.

One plant was Bill, who was very heavy, about 400 lbs., confined to wheelchair with multiple co-morbidities. John did not particularly like Bill, Bill had a difficult personality, but he would not be interacting with customers, John suspected he was a plant, and John was trying to calm the waters.

Bill signed the company policies which included a dress and appearance code which clearly stated the policy, the reasons for the policy, and that accepting employment meant you would follow the policy.

Bill arrived for his first day of work in a very short skirt and a bra with heavy facial makeup. John ignored his appearance but noted it in Bill’s personnel file. Bill spent his first week making expensive “accessibility” demands on John. Bill did nothing but spend most of his time in the bathroom or outdoors smoking. He was very nasty to other employees and supervisors. He used profanity liberally. He struck many employees with his wheelchair as he maneuvered unnecessarily around the office.

As of the date he was fired, Bill had shaved one half of his head and dyed the other half purple. He had blackened his upper two front teeth. Other employees complained he had an offensive odor, and he had developed a loud and annoying “grunt”.

John discovered Bill took $400.00 in petty cash when he left. John stopped payment on his final payroll check, which was less than the $400.00 Bill had stolen. The Attorney General started a payroll claim on behalf of Bill. John had to pay.

Bill filed a discrimination case against John. He showed up in court, bald, with a skull cap, in a nice suit, clean and neat with no noticeable odor or “grunt”.

We put 10 employees on the stand. An auditor testified to the missing funds and one employee testified he saw Bill at the desk where the money was kept before he left.

Bill lost his case. John got no money from the jury. John never got back the payroll. Bill kept the other $400.00.

A juror told me, unsolicited, they were irritated at the protestors they had to navigate each day, not the 11 witnesses we had testify. They believed the “fat man” was lying, and that they were sorry they couldn’t give John a million dollars, but they believed Bill was broke.

Sometimes you get the bear, sometimes the bear gets you. Sometimes, the bear leaves, but you are stuck in the tree. Odd justice! John ended his disability hiring program.

Statutes are also used to regulate civil processes and procedures. In my experience statutes are used more to provide different types of relief. They can be used to define different “torts”. A tort is a claim you make against another person or entity, like a company. A tort is a wrongful act or the infringement of a right or a liberty interest other than something involving a contract. We will get into torts but, for now, statutes can be used to define a particular tort such as negligence or gross negligence, or more complicated torts like wiretap violations or computer “hacking”. Statutes can also provide claims that allow for the Judge to award you more money than the evidence shows, attorney fees, and money you have paid out to get to a judgment, such as a consumer protection statute that allows for triple (treble) damages and attorney fees (unfair and deceptive trade practices).

It is a good idea to search for statutes that might deal with your damages before you decide what to put into your complaint or counterclaim. I would hate to miss a treble damage statute!

I think it is fair to say: “Rules Rule!”. They are very important. I can’t brag about being the best lawyer at rules. I am not. Trial attorneys are notoriously bad at rules. We would rather stand up in Court and do our thing. After years of getting kicked in the head, things sink in, and after your eyes stop bobbling around in your head rules become second nature. I wrote this section without looking up a thing. For you…well, you are gonna have to apply yourself. The internet will help. You should not have to pay to get any of this stuff.