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Centralized record keeping and the law

It is hard to conceive of any political or organizational unit larger than a village that could sustain itself without a centrally recorded repository of its actions.  Without having this repository of what the entity had done, has promised to do, and what it is expecting to do (along with the who, when, how and why) there is simply no ability for individuals dispersed through space and time to work towards the same goal.

Even George Orwell, in his dystopian masterpiece, 1984, did not conceive of a totalitarian regime in which no records were kept and the government just did what it wished.  Instead, his visions of a future “boot stamping on a human face—forever” required a substantial bureaucracy, continuously and frantically rewriting history to justify the ruling elite’s current policies.  This “history” and record keeping was a necessary condition of government functioning.

In any modern bureaucracy if there is no record of something happening it is as though it never happened.  Take a case in which father owes mother $300.00 a month in child support and they are now arguing whether support was paid.  Assume in one scenario father claims that, while walking down the street he found $300.00 (thus no record of any cash withdrawal from his bank) and he gave the money to mother without obtaining a receipt (thus no record of payment).  Assume in another scenario he pays mother the $300.00 via check from his bank.  Further assume the only eyewitnesses to the payment are mother and father.

I would submit that in the first scenario the court would almost never find that father paid the $300.00 and in the second scenario the court would almost always find that father paid the $300.00. Why?  Because of the important of bureaucratic record keeping to the modern state.  In the second scenario father will be able to produce a cancelled check from his bank.  This check will have the following information: a check written from father to mother for $300.00; mother’s endorsement of the check; a bank’s stamp showing that the check has been honored.  This record keeping “proves” the fact in dispute.

So why won’t the court believe father in the first scenario?  Because the court assumes that adults understand the importance of record keeping in dealing with a bureaucracy.  If father wanted to prove he paid the money, the legal system believes it is incumbent upon him to keep records proving the payment.  Since there is no record of the payment, the court will assume no payment was made.  Many potential clients–and even some lawyers–do not understand or even acknowledge this simple truth: in a modern bureaucracy, unrecorded actions are akin to non actions.

Because of this rule an order that was never filed is a nullity–at least until it is filed.  Many adults–and even a few attorneys–do not understand this.  Attorneys who prevail at a trial or motion will often wait weeks to draft the proposed order, seemingly oblivious to the fact that there is no “order” until it is signed by the judge and filed with the court.  Attorneys often get into trouble not because of the work that they have done but because of the failure to document that they have done the work.  Potential clients will come to my office to consult about modifying or enforcing a court order but fail to bring in the order.  Or they will bring in an unsigned copy of the order.  Or they will bring in a signed but unfiled copy of the order.  None of these are orders as the law defines an “order.”  The bureaucracy (i.e., the court) will only enforce or modify the filed order.  If the unsigned order the potential client brings me was modified before it was filed, it is the modified copy that the court will look to in enforcing or modifying.  If the signed order was never filed, it will need to be filed before it can be enforced.  Further, the effective date of the order for enforcement or modification purposes is the date it is filed, not the date it is signed (because the bureaucracy requires acts be recorded in order to be official).

Part of my task as an attorney is teaching clients of the need to respect the bureaucratic process. Trying to analyze a case without knowing what has been filed with the court is dangerous because if one doesn’t know what the bureaucracy knows one cannot predict how the bureaucrat (and the judge is a modern bureaucrat–though, hopefully, a thoughtful and intelligent one) will act.  Getting my client to keep good records and understand what has been done previously in court is required if we are going to set realistic goals.

The bureaucracy is keeping other records on you.  Use a grocery store rewards card: there’s a record of what you purchased at the store.  Use a cell phone: there’s a record (at least for some period of time) of what number you called and when along with a close approximation of your location (from the cell tower(s) that handled the call).  For a period of time your internet service provider will have records of the e-mails you send and receive.  I can develop a good understanding of your buying habits from your credit card and banking records.  Given enough resources, I could develop an understanding of your life through bureaucratic record keeping that would be at least as honest and accurate as any narrative you could provide me.

As a political science major at Haverford College I read a great deal on Max Weber’s theories of bureaucracy.  Being twenty years old at the time–and having had little dealings with bureaucracy outside of schooling–his writings were interesting but not revelatory.   It was only when I began practicing law that the idea that bureaucracy is central to governing (whether political or corporate) crystalized in importance.  Few folks get any formal education on bureaucracy, yet their dealings with government bureaucracies are far more likely to be meaningful to their lives than their acts of voting or jury duty.  An understanding of modern bureaucracy should be a routine part of every high school civics class.

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