LEGAL GUIDE
Written by attorney Michael S. Haber | Jul 26, 2010

The Importance of Procedure in the Legal System

Death as a Late-Filing Penalty

You may have read, a while back, of a circumstance in which a death row prisoner filed his last possible appeal a day late and the prosecutor argued that respect for the law required that he be put to death and his appeal not be entertained.

Imagine that: The penalty for a slightly late filing can be death. While that story can be understood and appreciated on an array of different levels (legal, moral, common sense), the fact that the prosecutor could even make that argument proves, undeniably, that the legal system regards procedure as a factor of exceptional importance. Even the IRS does not mandate death for a late-filed tax return.

Procedure versus Substance

The practice of law is a combination of regard for both procedure and substance. That is true not just in the practice of law, but in all aspects of life. We have all met, for example, people who are procedurally religious (they abide by various ritual and pray very frequently) but are substantively mean. Or people who are procedurally compassionate but substantively unkind. Life is, in some respects, a constant battle between procedure and substance. If you think about it, you will come up with an array of your own examples of situations where procedure and substance were in conflict.

While it may be difficult to win a case if you regard only procedure and have no regard for substance, and vice versa, it is quite possible to lose a case if you disregard procedure or if you disregard substance.

If you pick the exact right lottery numbers for a $10 million lottery, but you never buy a ticket, you have missed an important procedural step. That step will cost you.

The common myth is that law is all about substance. It is not. Every lawyer can tell you about cases that they (or other lawyers) lost because of a procedural misstep.

Knowledge of the law is, of course, of tremendous importance for a lawyer. But if the only law the lawyer knows is substantive and he or she has no regard for procedure, I can pretty much guarantee you that that lawyer does not have a winning record.

Become Familiar With Procedure

If you are a lawyer, you already know the importance of procedure. If you are a party to a lawsuit (or a potential party to a potential lawsuit), it is very helpful for you to become familiar with legal procedure. If, for example, you slip and fall on a defective Manhattan sidewalk and break your leg and are out of work for a month and incur large medical bills and experience substantial pain, it is good that you know that the statute of limitation is a bit more than a year. But if you are not aware that an action against the city requires that a notice of claim be filed within 90 days, you may be out of luck.

Let's say you hire a lawyer. For whatever. A personal injury lawsuit, a contract dispute, an employment problem, a real estate matter, a tax issue, or anything else. You should, of course, inquire about the substantive law. You should ask about the substantive law that is in your favor and, certainly, the substantive law that may work against you. But after you have asked those questions, it is crucial that you ask the lawyer about procedural issues.

Ask such questions as:

What steps are involved?

What are the filing deadlines?

What papers must be filed?

Sometimes something as simple as a typo can work against you. Or forgetting to sign a paper. Or forgetting to have it notarized. Or mailing the document this afternoon when it is required to be received by the court tomorrow.

The Importance of an Experienced Lawyer

Experienced lawyers know the importance of procedure. Sometimes when I am retained to handle a type of matter that may be somewhat unfamiliar to me, I start by researching the procedural issues. Lawyers who have been around know, almost intuitively, what substantive law applies. They will, of course, research and evaluate the substantive issues -- like statutes and case law and the elements of each claim -- but it is quite often the procedure that may potentially block them from the courthouse door.

Neither you, nor any other client, wants to hear that you would have had a very strong case.

Perhaps in a perfect world, procedure wouldn't matter. Perhaps in a perfect world all mistakes could be forgiven, all errors glossed over, all missteps overlooked. But if we lived in such a perfect world, there would be no lawsuits and no courts and no judges and no disputes. I am probably not the first to tell you that the world is imperfect.

If you think about it, a new lawyer (fresh out of law school and who only recently passed the Bar Exam) knows an awful lot about substantive law. He or she has spent three years reading cases, messily underlining key passages in casebooks, being questioned by law professors, studying through the night for exams, with only a hot cup of coffee (or two or three) as their companions . There is still much to learn, but new lawyers (who usually have taken a class or two in procedure) are far less knowledgeable about procedure than they are about substance.

Conclusion

When we talk about "the law," we are talking about both substance and procedure. Both are crucially important. Make sure your lawyer is fully familiar (or is willing to become fully familiar) with applicable procedure.

Television shows about lawyers usually focus on substance. That's because procedure is just not that interesting. Filing deadlines. Filing in duplicate or triplicate. The time that the courthouse closes. Attaching to your legal documents papers that can only be obtained from the record room, which may close at 3 p.m., not 4 p.m, as you thought. None of these things is dramatic or fascinating or colorful. But it can make or break your case.

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