Ask Dr. Copyright

Dear Doc:

We all hear about the “Rule of Law”, but lawyers seldom discuss the rules of law, you know, the rules about how the system functions. Can you enlighten me?


Nothing Better To Do

Dear NBTD:

While the “Rule of Law” means that everyone should be equal in the eyes of the law, and that there should be a level playing field (which no soccer player would ever want, as level fields flood when it rains, but the Doc digresses…), the rules of how the legal system function are complex and many.

For instance, lawsuits are conducted under the rules of “civil procedure” and criminal prosecutions are governed by rules of “criminal procedure”. These rules set up the schedule for the case, govern how to go about gathering evidence, how to start and end the case, and how a decision may be appealed to a higher court. 

Speaking of evidence, there are rules of evidence that govern what counts in court and what may not be considered. There are rules of appellate procedure that govern how cases are appealed. Each state, all 50 of them, has separate and slightly different rules, and the federal courts have both a uniform set of rules and also local rules that apply for each court. Bankruptcy courts have bankruptcy rules, and tax courts have tax rules. Military courts have their own rules. On top of that, each judge is allowed to make rules for her own courtroom.

Lawyers must follow the rules of professional conduct (what used to be called legal ethics rules) that vary by jurisdiction as well. Sometimes the rules overlap and even conflict with each other. Judges must follow the rules of judicial conduct (except for Supreme Court justices, who don’t have to follow any rules at all, ever!)

In the Doc’s nearly 40 years practicing law, he has observed that some lawyers carefully follow the rules, while others routinely ignore them. Those who flout the rules are, in the Doc’s experience, rarely punished by either judges or the bar, which has the job of enforcing the rules of professional conduct. On the whole, the Doc thinks that lawyers today behave less collegially and professionally than they did when he was starting out in practice (but that may just be the Doc getting old and cranky!)

So you see, the “Rule of Law” should rightly be called the “Rules of Laws”. That so many rules exist is proof that somebody, somewhere, at some time violated each rule, so we needed to write down what not to do. The complexity of the system means that lawyers have to spend years in law school learning the rules, along with the laws, in order to represent their clients properly. Then we grab a bunch of people off the street, sit them in the jury box, spend an hour explaining the rules to them, and ask them to decide the case! The amazing thing is that juries get it right most of the time.

Have a legal issue? Don’t even know which rules apply? Contact the attorneys at LW&H. They are sticklers for the rules.

Until next month,

The “Doc”

— Lawrence A. Husick, Esq.