Abolish Local Rules?

Universal Language

About once a year, at a law prom-type event or during a Federal Bar lunch with local judges, I hear someone hypothesize about a future without local rules. Can you imagine? A world where the Federal Rules of Civil Procedure would serve as a universal common language. An Esperanto. A Euro for our juridical system. Is such a future possible or even desirable?

They’re simply traps for the unwary

It’s easy to make the case against local rules. They permit each district to set up its own idiosyncratic system, ensuring that counsel from afar must hire and rely upon a local to sherpa them up the mountain.

They are also the bane of every recent law school graduate’s existence. Law school teaches you many things, but the ins and outs of local rules were not one of my takeaways. And, I consider myself lucky—we had a phenomenal civil procedure professor who impressed upon us the fact that local rules existed. So you leave law school, begin life at a firm, and as a junior attorney, are usually expected to coordinate federal filings. That’s right—the people with the least familiarity with local rules usually plunge right in and make some serious mistakes. How many days before a hearing must you file your motion? Did you think about whether it was dispositive or non-dispositive? Does your district have a meet and confer requirement? Friends have called me after failing to catch the details on all these points. These people were in agony—convinced that a local rules error had ruined their career. “I’ve always wanted to run a bed and breakfast,” one friend mused after a local rule trip up.

Unknown Unknowables

There are known knowns, there are things we know we know. We also know there are known unknowns, that is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don’t know we don’t know.

Donald Rumsfeld got some laughs when he talked about the unknown unknowns. He was of course discussing Saddam Hussein’s “mythical weapons of mass destruction,” but he could have been talking about local rules.

I find the biggest problem with local rules isn’t simply finding the applicable rule and following it—sometimes you don’t even look for a local rule because you wouldn’t have imagined its existence. Sure, I know to look up rules governing motion practice—but sometimes it doesn’t occur to a junior attorney that a specific rule would govern a specific motion. One error on this front can lead to obsession—people have been known to review the entire local rule book before filing a particularly important motion. Do we want a system that encourages this type of obsession?

But they have their charm

All that said, I wouldn’t vote the local rules off the island just yet.

I fell in love with the idea of practicing law reading Jane Austen and Dickens. An elaborate system of idiosyncratic rules is necessary to support my romantic vision of the legal practice. And, as I’ve progressed in my practice, and begin to understand the local rules, I find myself enjoying my fluidity with the system. Once you know the rules, you can think of creative ways to apply them in new situations. Does this defense amount to nothing more than standing by the system that I have learned and am comfortable with? Probably. I am also one of those people who freaks out whenever the New York Times or Washington Post changes their on-line layout. I am sure their researchers assured them that the new system would prove more user-friendly, but until I have mastered the new system, I long for the familiar.

A last ditch defense? The local rules are incubators for innovation. We have a couple of local rules that I believe are true improvements on the Federal Rules. Perhaps they will prove models for the nation. Regardless, we get to enjoy those rules right here because, well, let’s face it, we’re a little bit above average.

(image: Univeral Sign with Spanish from Shutterstock)

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  • http://gillette-torvik.blogspot.com Bart Torvik

    Nice post Sybil. There’s at least one other advantage of local rules that I can think of: at least having written local rules gives you a chance of figuring out what the local practice actually is. Many jurisdictions—particularly county courts—lack “Local Rules” but still have something akin to an oral tradition of rules and practices that the attorneys are just supposed to know, somehow. (Often these rules are found in “standing orders”; often they are not.)

    When I practiced in Minnesota I thought it was amusing that there were at least two separate sets of rules (the rules of civil procedure and the rules of general practice) that applied in state court. But I much prefer that to certain other jurisdictions (that, ahem, I many now practice in) where there are really no written rules at all.

    • Sybil Dunlop

      Thanks Bart – and good point. Tell me how many pieces of flair to wear and I’ll wear them, but unwritten rules require esp.

  • Karin Ciano

    As a longtime reader but first-time commenter I want to thank you, Sybil, for your post on the underappreciated but valuable federal local rules. They’re no harder to find or use than any other bit of law, and they save the taxpayers money that would otherwise fund Court personnel repeatedly answering important questions like “what font should I use?” Yet, since most law professors have never practiced, and law schools aren’t all that into teaching anything “local,” many law students meet the local rules the first time they have to file a pleading in court. About the time I learned that the Bluebook only matters in law school, I also discovered the existence of local rules – after filing an embarrassing pleading with numerous errors. Years later, it’s just another box on my law-hunting checklist: Have I found all the rules that apply? Yes, local rules could be simpler and more consistent (it’s hard to preserve the structure imposed by the Federal Rules of Civil Procedure and still keep up with the options presented by electronic filing). But they’re valid attempts to fill the gaps in the FRCP in a thoughtful and consistent way, and consider the nightmarish alternatives (unlimited pages, tiny fonts, no guidance on briefing schedules, multiple briefs in support of a single motion…).

    • William Chuang

      In addition to local rules, be aware of judge’s rules or, in New York courts, part rules.

  • http://projectplay.net/ Sadie

    Everything I know about rules comes from My Cousin Vinnie, so therefore I am with you. Local rules are just a vehicle for local lawyers to frame innocent yoots.