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Robbins: Simplified civil procedure?

With apologies to the Society for Prevention of Cruelty to Animals, there is more than one way to skin a cat.

The particular “cat” I have in mind is the cat of civil procedure. Join me as I count the ways.

First things first. “Civil procedure” is distinguishable from “criminal procedure.” While the latter deals with prosecution of criminal offenses, the former deals with private disputes between individuals. At law, there are rules for each and the rules on each side of this divide are different.



Within the realm of civil disputes, there are yet further clefts that the structure of the courts reflect. There are small claims courts for minor disputes — in this state limited to disputes in an amount not exceeding $7,500. In small claims court, the rules are generally informal; each side tells their story to the judge without a lot of formal falderal, and, with some exceptions, lawyers are verboten. This is easy-peasy court.

The next rung up the ladder are county courts which lawyers like to refer to — only somewhat in jest — as “trial by ambush.” The amount in dispute may range up to $25,000, and essentially there is no formal discovery permitted. Thus, coming into trial mostly blind, the sardonic “trial by ambush” moniker attorneys have attached to county court proceedings, has been broadly adopted.



The next skip on the hopscotch board of civil disputes is district court. This is where the rubber of major civil quarrels meet the road. To be clear, district courts are trial level courts. They are where the trial proceeds and, if one is unhappy with thec outcome, the courts from which appeals are taken. As a quick diversion, appeal — if one is taken — in most instances goes first to the court of appeals and perhaps thereafter to the state supreme court. Only rarely do very specific kinds of cases make it all the way to U.S. Supreme Court.

But I digress.

In district court, Rule 16 is the helmsman of the ship. That rule is entitled “Case Management and Trial Management,” and, like Dr. Seuss’ Horton fostering an egg, it says what it means and it means what is says. Along with Rules 26-37, which dictate and control discovery, they shape the borders and parameters of civil litigation.

Oh my, where are my manners? I neglected to introduce you — however briefly — to “discovery.”

In many ways, “discovery” is the essence of litigation, or at least the preparation for it. Discovery consists of the exchange of information and known facts of a case. Think of it as the obtaining and disclosing of evidence so both sides can properly prepare for trial.

Not in every respect, but litigation is like an Easter egg hunt. OK, there are seldom anxious 6-year-olds in pinafores, and the eggs are rarely colored. But setting that aside, the analogy is apt.

OK.

You see, preparing for a lawsuit is like being on a treasure hunt. And the treasure being sought is information. As Francis Bacon once observed, “knowledge is power.” And information leads to knowledge which may in turn be wielded in the courtroom like the Sword of Damocles.

“Discovery” then is the process by which information in the legal context is gathered. En garde!

Now back to the helmsman of the ship of civil process: Rule 16. If not unlimited, discovery under Rule 16 is broad. One may take depositions (oral testimony elicited under oath outside the courtroom and in advance of trial), propound interrogatories (written questions answered under oath), serve requests for production of documents (which must be responded under oath), levy requests for admissions (which must also be answered under oath), and, in certain circumstances, conduct medical or other evaluations, and so on.

Rule 16.1, however, is a horse of a somewhat different color. That stepchild of the broader rule is denominated “simplified procedure for civil actions” which, if you have been paying attention, nicely matches the title of this column.

The rule generally applies to civil cases seeking less than $100,000 in damages and therefore filed in District Court. The goal is to reduce both costs and delays in relatively “small” civil claims.

Although there are opt-out provisions, if the rule is adopted in a case, discovery and its attendant costs are severely limited. Too, there is less involvement by the court. Although the court will certainly be involved — and if and when the matter comes to trial, it will be presided over without distinction from other kinds of actions — there are fewer stops along the way where, under the broader Rule 16, the court would be involved. Quicker, leaner, less lugubrious and hopefully more economic are the watchwords.

It is worth a quick note here that there is yet another horse in this particular stable: Rule 16.2, which pertains specifically and exclusively to domestic relations cases — and which has its own specific set of rules.

The take home here, however, is that there are at least several different ways to skin the cat of litigation — and which one you deploy will be guided by the particular weight, heft and breadth of your dispute. If your action is a “Goldilocks” dispute and is “just right,” simplified procedure may be the snug, proper, and economic fit.


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