Abolish Local Rules?
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.
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)