Rules of Law: Read Your Procedural Rules Before Filing

Alright, so you guys may remember that, in the past, I’ve had some words for Tiffany Dehen, the USD law graduate who was impersonated on Twitter, lost her mind, and began to sue everyone in the world for $100,000,000 in order to be compensated for the grave slight of there being a Twitter account out there with three followers in her name.  You may even recall that I previously begged her, in an open letter, to, in the words of that goddamn ice princess, let it go. That didn’t happen, and yesterday both Twitter and USD filed briefs seeking to have the whole thing dismissed.

This isn’t a post about Twitter, but…you guys…how strangely awesome is it that USD Law essentially moved to dismiss a complaint filed by one of their own graduates on the grounds that someone they gave a fucking JD to doesn’t understand the basic procedural rules everyone is taught in the first year of law school? What world is this, even? That’s like the very definition of a pyrrhic victory!

You don’t know what that means? Oh my god…I’m dealing with children. Google it. I’m not your goddamn history teacher. By the way, go smack your history teacher.

Anyhow, despite being really goddamn amusing, there’s an important lesson for lawyers in the Tiffany Saga today, and that is learn the goddamn procedural rules that will govern your case.  Jesus christ, this should be like simple background shit for most of you by now, but I’m personally seeing attorneys with years of practice fuck shit up procedurally simply because they can’t be bothered to go on the local court website and read the rules and procedures.

Quick, A War Story!

Alright, so in the not-too-distant past I had a case against a much older, much more well-known attorney from a much larger city. The case was brought in my little slice of Shitsburg, though, and the Shitsburg County Court of Common Pleas was the one hearing the case. That meant that we fell under the Shitsburg Local Rules, the procedural rules that govern every single case that comes before the Shitsburg courts.

Opposing counsel, however, did not practice in Shitsburg, and therefore wasn’t exactly aware of the more niche rules we have here, like only giving oral arguments on full moons while standing on one leg in a tutu and screaming “I’m a pretty little litigator” into the empty jury box. This alone may not have been fatal except for the fact that our Opposing Counsel, we’ll call him the Big City Solicitor, was more used to practicing in Federal courts than the state courts, and therefore made  a lot of assumptions outside of the local rules as to what the procedural rules would be.  Worse than that, his briefs were obviously written by a 1L getting a little bit of court credit, because while they referred to cases that explicitly set forth the differences between the local, state, and federal rules, they automatically assumed the Federal Rules would apply to the matter and discarded any differences between the two.

I hammered him like a tipsy virgin in oral arguments.

Now a warning.

Guys, there is literally no way to make any talk about civil procedure interesting. It’s a dry, dull subject…unless you’re a fucking lawyer or a law nerd. So if you’re one of those goddamn muggles, abandon all hope now.

You keep saying “Rules.”  What are those?

Please for the love of god, turn in your fucking law license.

Alright, so there are these things called “Rules,” and no, these are not like the “Scientific Rules” or some such shit that those educated people know. These are rules of procedure, both civil and criminal, that are put in place by the court to help shit move along.  They dictate who does what when in court matters, such as filing a brief, filing a complaint, gaining service, amending a complaint, etc. They also dictate when you have to do something. The biggest and most well known of these are the Federal Rules of Civil Procedure which are the rules promulgated for use in the United States District Courts.

Not the appellate courts, though. Those get their own rules. It’s rules, all the way down.

The Federal Rules of Civil Procedure (or the FRCP…or the Fed. R. Civ. P. if you were one of those law review assholes) is a collection of around 86 rules, and about 35 of the states have adopted some variation of them as the basis of their own state rules of civil procedure.  It’s also what is exclusively taught to first year law students, as it is really goddamn important to know these things such as how to properly file and serve a complaint or what standard you have to meet in the complaint to avoid getting your ass thrown out of court.  Everything is laid out in excruciating detail.

So it’s an instruction manual?

…Go smack your FRCP professor. No. It’s not an instruction manual even if it fucking looks like an instruction manual that’s really straightforward. Quick, let me ask you: where’s the rule in the FRCP that tells you what the pleading standard is? Right! It’s FRCP 8(a)! Now…is that fact or notice pleading?

What’s that? You don’t fucking know what either of those mean? Oh shit, that’s a problem isn’t it? Don’t worry, Daddy Boozy is here to call you a goddamn moron much like your real father should have. “Fact” pleading requires that a party set forth in the complaint a short and plain statement of the facts that support the claim, whereas “Notice” pleading only requires that a party give a short and plain statement of the claim underlying the action (the essential elements of it). It’s the difference between “Bob asked for $100 from Jim.  Bob said the $100 was for his sick daughter. Bob then took the $100 and spent it on a really cheap hooker and some blow. Therefore, Bob has defrauded Jim.” and “Bob has defrauded Jim.”

The FRCP, by the way, doesn’t use fact pleading…except when it fucking does. Because the FRCP has some sort of mental disorder and can’t say what it actually fucking means.

That’s why this isn’t a fucking instruction manual, because for every fucking one of those rules there’s a court case, or many court cases, interpreting the rule and what it means. For instance, that whole “pleading standard” thing? There’s a case out there called Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) which explicitly states you may not have to plead every fact under the FRCP, but you have to plead enough facts that a court can determine if you really have a claim or not. So even though the FRCP states “Set forth the claim,” the court interpretation of that rule is “Set forth the claim and enough facts to show it really exists.”

This is why we have an entire fucking course on this shit, by the way. Understanding the procedural rules is a goddamn mess.

At least there’s only one set of them.

At the Federal level, yeah. But the FRCP doesn’t have jack shit to do with state courts.

See, the federal judiciary has no ability to establish procedural rules for the state courts. That means each state sets forth their own, in-state version of the FRCP…except not the FRCP. Out of the 50 states, only 35 of them have adopted the FRCP, or even a variation of the FRCP, as the basis of their current procedural rules. The other 15 have a completely different set of procedural rules that may sometimes seem like the FRCP, but aren’t the FRCP at all. And each of those states have their own massive goddamn body of law interpreting each and every one of those rules.  Pennsylvania, for instance, has 39 fucking chapters of procedural rules for civil matters, which may borrow from the Federal rules, but are completely fucking different and predate those rules by a while.

And no, they aren’t the same. For instance, the Federal Rules has a “Motion to Dismiss for failure to state a claim under 12(b)(6)” while Pennsylvania has a “Preliminary Objection in the Nature of Demurrer under Pa. R. Civ. P. 1028(a)(4).” And while they may seem similar (both take the Complaint as true and examine whether the facts support the claim), procedurally they are entirely different. The 12(b)6) Motion is a motion meaning it is briefed in support, responded to, replied to (if necessary), and then orally argued.  The Preliminary Objection is a pleading, leading to the situation where you can filed Preliminary Objections to the Preliminary Objections, brief them, reply to the briefs, then argue them if the court doesn’t decide to just say “NAH!”

Why is this important? Okay, remember that war story up there? Opposing counsel never responded to my Preliminary Objections to their Preliminary Objections, instead stating that doing this was improper because the proper way to raise the issue was in a responsive brief. And had we been under the FEDERAL rules, he would have been right! But we weren’t under the Federal Rules, we were under the state rules, which means the Preliminary Objection is a pleading in and of itself, and procedurally the way to object to the contents of the pleading is by bringing another set of Preliminary Objections.

It’s preliminary objections, all the way down.

Of course, he’d know this better if he had read the Local Rules.

The…The Local Rules?

OH YEAH! The Local Rules, because it’s rules within rules within rules when you get your ass dragged before the court!

Some rules will have a line like this:

 The requirements for the promulgation and amendment of local rules of civil procedure are set forth in Pennsylvania Rule of Judicial Administration 103(d).

Pa. R. Civ. P. 239.

What this means is that some of the rules set forth in the main rules actually require that the local courts each set up their own rule for how to handle certain matters, like…Preliminary Objections, for instance, which are found under Local Rule 1028(c) in every county! How complicated is that? Let’s see.

Here is Local Rule 1028(c) for the Court of Common Pleas of Allegheny County. It’s six fucking pages and amazingly specific in what has to be filed with Preliminary Objections, when, which preliminary objections follow which procedure, and the consequences of not meeting a requirement. Six pages. Laying out one sub-part of one state Rule of Civil Procedure that is left to the discretion of the local courts. By the way, this rule may be different for every fucking county, and a failure to follow it exactly could be fatal to your goddamn pleading or motion. You can and people do lose cases just for failing to attach one document or page a local rule requires.

Oh, yeah, another thing: This isn’t exclusive to state rules. Federal Courts have local rules, too.  And yes, if you’re practicing in front of that court you are goddamn well expected to know those rules.

This is needlessly complicated.

Yes and no. I mean, yeah, there’s a lot of shit out there for an attorney to research in regards to procedure, but the law itself is a hell of a lot more nuanced and complicated than the procedural rules, and you should be competent enough to make sure you check those local rules.  That’s sort of your job.

Plus, there simply isn’t a “one size fits all” solution. Local rules and Rules of Civil Procedure in general exist to streamline the administration of justice in the court by requiring everyone to do things in  the way that best speeds up the administration of justice and does away with the time and effort required to decipher some truly idiotic bullshit. That’s why we have local rules in the first place: The needs of a court in, say, Denver are a hell of a lot different than the needs of a court in Goatfuck, CO. Courts need some discretion to tailor their procedures to meet those needs.

Conclusion

And, at the end of the day, fucking up the rules is malpractice. That means if you blow it because you don’t take a minute or two to verify the appropriate rules to apply, it’s on youYou’re the goddamn attorney, and as Tiffany shows, those who aren’t good at law stuff will never understand these rules and how they work.

So, you know.  Read a little.  Shit, you read this.

-BB

 

 

 

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.