Playing Monopoly when no one agrees on the rules (or why I’m a Civil Procedure maven)

Posted Friday, December 11th, 2015 by Gregory Forman
Filed under Family Court Procedure, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Law Attorneys

Any contest requires an agreement on the rules, in advance, to proceed properly. Many people have variations on Milton Bradley’s “official” Monopoly rules. When these folks play Monopoly without having agreed on the variations beforehand, disputes develop and the game halts. What was supposed to be a form of play devolves into an argument. Unless one finds arguing about rules fun, the game stops being fun.

Civil procedure is to lawsuits what rules are to a game. Actually, because lawsuits often involve disputes about what the “rules”–the rights and obligations of the parties–are, Civil Procedure is Meta: general rules on how to determine specific rules. Fail to follow set procedure and lawsuits descend into chaos. Attorneys who are a stickler for procedural rules often develop reputations as being difficult to work with. This is unfair. Basketball players have often complained, perhaps justly, that star players are given greater latitude to travel; fans understand the potential unfairness about not applying rules uniformly. While the Rules of Civil Procedure allow some flexibility, an attorney who follows the rules is similarly handicapped when others do not.

Very early in my first associate position, my boss saw me heading to the restroom with the local daily newspaper tucked under my arm. He stopped me, pulled out a volume of Pennsylvania’s Rules of Civil Procedure (Pennsylvania’s rules, at that time, did not track the Federal rules we all learned in law school), and told me, “this is your new bathroom reading.” It was the best advice he ever provided. Twenty-four years later, it’s a story I relay to attorneys I mentor.

Often attorneys ask me about motions they need to respond to or file, discovery they need to answer or cannot get the other side to fully answer, or some remedy they are not sure how to pursue. My first step is to access the Rules of Civil Procedure, conveniently located online on the South Carolina Judicial Department’s website. Even though I am somewhat of a rules maven, I often learn something new–or realize I lacked a fully accurate recollection of the rules–when I “lay eyes” on the actual rule. Typically reviewing the rules will provide a few possible methods of pursuing my clients’ goals or defending my client from the opposing party’s pursuit of his or her goals.

There are few procedural issues within a lawsuit that cannot be resolved through some application of the rules. However attorneys with a weak understanding of the rules, and how they work together, are often unable to fully defend motions that should be denied or pursue remedies that vindicate their clients’ rights. New attorneys should learn the Rules of Civil Procedure and get in the habit of following them and demanding their opposing counsels follow them. Experienced attorneys should continually review them rather than relying upon memory.

3 thoughts on Playing Monopoly when no one agrees on the rules (or why I’m a Civil Procedure maven)

  1. Greg – thanks for this – Well said. During my first semester in law school, I complained to my very wise lawyer father how I hated Civil Procedure and the Rules – he firmly explained to me that it was my “bread and butter course” – that the best litigators live and die by the Rules. I have never forgotten our talk and have told all my younger lawyers to be sticklers and to read and read the Rules. AFB

  2. One needs to read the court rules regularly to know what is there. One must reread those rules with each case because because they become much more meaningful when applied to real facts rather than read as abstract rules. When researching a particular case or fact situation, I frequently find the rules much broader and deeper than I remembered. Other times I find them much more narrow than I remembered.

    Lawyers who know and follow the rules have greater credibility with judges and other lawyers than those who do not.

    If you wonder what the rules are about, Read the second sentence of Rule 1, SCRCP. If lawyers and judges follow and apply the rules, litigation costs are reduced, resolution is quicker, and the results are more fair.

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