Ok – you’ve decided to go for it. You’ve either decided to bring a lawsuit in which you represent yourself, or, you’ve gotten sued, and you’ve decided to go it alone. Either way, you’re going to be in court. You’re going to be preparing court papers, aka pleadings. You’re going to be making motions or responding to them. You’re going to be sending and responding to discovery. You’re going to be doing all the things that together make up a case in court.
Your first question of course is likely to be, “how to I do all those things?” Sit tight dudes and dudettes! We’ll get to that on down the road. In the meantime, long before you dash down to the courthouse, complaint in hand, or send of an answer to a lawsuit, you’ve got to familiarize yourself with the rules of the court that you’re going to be in. This is not debatable. It’s not optional. It’s not just a matter of passing interest. The rules are critical. They control everything about a lawsuit from start to finish and beyond. This is such a big deal that I break it down into two possibilities: a. you know the rules and you survive the lawsuit, or b. you don’t know the rules and you lose. And I’m not being overly dramatic. In many cases judges will give some slack to pro se litigants when it comes to procedure and even the underlying law. In fact, there are some appellate court decisions, especially at the federal level that require pro se litigants without legal training be given some leeway. But that does not apply to going by the rules!! Judges will not tolerate their court and the proceedings being disrupted because somebody is unable or unwilling to comply with rules that are set forth in black and white.
People, it’s that simple.
Ok, hopefully I’ve got your attention. So what are these rules? Where do I find them? What do they mean?
All good questions, so here we go.
First, every court of any kind, anywhere in the country is governed by and operates pursuant to specific rules. What we’re going to do in this and subsequent posts explain what the rules are, what they mean, where to find them, and how to make sure you don’t run afoul of them.
So, let’s get started.
First, where do the rules come from and where are they?
Rules in American courts come from the power, inherent in the statutes and constitutional provisions (state or federal) that create the courts. Stated differently, if a court exists under a federal or state constitution, or a federal or state statute, along with it, the court is given the authority to define the procedures it will operated under. This power is exercised in the form of the court’s rules.
There is a lot of variation from state to state in this regard, but in the end the underlying process is the same. For example, (and this goes to where you can find these rules) in some states the rules are created and put into effect by the courts themselves, typically the supreme court of that state. Those are published separately. In other states, the courts create the rules, but it is the legislature of the state that actually publishes them. In these cases the rules are actually written, and found, as statutes in the state’s code of laws.
Regardless of whether court rules are set forth separately as rules, or as a part of a state’s statutory law, they have the same effect, and that is to govern how cases in court proceed from commencement to final resolution.
You also need to understand is that there are different sets of rules for different aspects of a case and for different courts. For example, a court of general jurisdiction in a state might be governed by that state’s Rules of Civil Procedure, while and appeal would be governed by the Rules of Appellate Procedure. There are rules in family courts that do not apply in any other courts.
And of course, all these rules are changing. One trend that deserves mention is that more and more states are adopting rules that track the federal rules of civil procedure. Utah, Arizona, New Mexico, North Carolina are just a few examples. As more and more states follow this trend the easier it will be, because there are still states with absolutely outdated and hopelessly confusing rules. If rules from state to state start getting more and more similar, the easier it will be to find and understand them.
OK – now that you understand that you have to be able to find, research and comply with court rules, next time I’ll discuss where to find the rules, and give you some examples.