Litigation involves a lot of tricky procedures. Sometimes, even the best at the game don’t know all the tricks out there. I didn’t know one of the hoops I had to jump through for a challenge to one of my pleadings that came up today. An extra pleading I had to file to explain why an amended pleading I had also filed was different from a previous version of that pleading. And the other side did know the trick. They called me on it and they were right; I didn’t do that extra filing.
But somehow I did the thing where the Court just ignores the fact that you’ve broken the procedural rules, and does what it thinks is right anyway. The result is a big advantage for my client, one I had feared I would have lost for him because of a mistake in a rule I didn’t know about before it was too late.
It’s always the rules you don’t know about, the deadline you weren’t aware of, that gets you. You can never know too much procedure — and you can never lose sight of how the procedure is supposed to fit into the big picture of what the courts do. At the end of the day, civil courts are about dispute resolution. So that’s my practice tip for the week: If you can figure out how to position your side of a procedural problem on the side of getting the case steered towards settlement, and can point to any phase of the process in which the Court has the ability to exercise discretion, you’ll wind up getting a good ruling from a judge with a criminal law practice background way more often than not, no matter what the Code of Civil Procedure says.
