Trial practice and court rules

Trial practice and court rules

A few years ago I was invited to speak to the trial judges in Washington State. I decided to tell them the truth as I saw it. The applause was light sparse and unenthusiastic. I’ve never been invited to give a talk since that time.

The other day my partner showed me one of the local rules in King County and I was reminded of the unpopular talk I had given. So, I’m going to outline y talk here because I feel as strongly now as I did when I gave the talk those several years ago. Not only that, the situation hasn’t improved, it has become worse and more complex. So here’s an outline of that talk even though it won’t do any good.

The first thing I told the trial judges was that "less is better then more" when it comes to creating rules. After all God gave Moses only ten commandments that governed the entire rules for society. The Lord’s prayer has only sixty six words and the speech that has remained one of the most famous and moving speeches of our history is the Gettysburg Address. Lincoln used only two hundred and eight six words. We live in a time when the nation’s tax laws are some six times longer then Tolstoy’s War and Peace as well as being considerably harder to understand.

We not only have to comply with rules adopted by our state Supreme Court governing the practice of trial law, but rules every county in the state has adopted. They call them "local rules," but the local rules have consumed the Supreme Court rules and failure to comply is just as fatal as a violation of the Supreme Court rules.

Worse, the enforcement of the rules by the trial judges seems to be taken from Dr. Eric Berne’s 1964 book Games People Play and the chapter: "I’ve Got You Now You Son of a Bitch." Instead of these local rules assisting or improving the processing of cases they have become a series of obstacles to overcome or suffer sanctions. The result is that the local rules have become not just a hindrance and trap for the unwary, but are time consuming and add expense.

Noah would never have been allowed to build his ark in this legal environment. There would have been rules of all kinds governing everything he was trying to do and making all kinds of objections as he did it.

There is a story about the famous comedian W.C. Fields who was an avowed atheist, but was observed one day reading a Bible. When asked what he was doing, he replied "Looking for loopholes, looking for loopholes." That’s what excessive of rules do to the law practice when lawyers, faced with a volume of rules begin looking for ways around them.

With a multitude of rules to comply with in processing a case for a client, we are forced to become pencil pushers with green eye shades laboring over dots, comas & period marks. We need a set of Ten Commandments in the practice of trial work and we don’t need the U.S. Tax Code to do it right. I think we need to remember why we have a judicial system and jury system. It is not for the benefit of the trial lawyers or the judges. It’s primary purpose is to benefit the people who are in the system as clients and who are looking to the system for justice. That’s where our focus should be.

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