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Sybil Procedure: Hallowed rules are a great equalizer

I spent the year 2000 in Geneva. I spoke passable French when I arrived. By the six month mark, however, my French had dramatically improved. Actual native speakers would sometimes mistake me for a Swede (instead of hearing my accent and asking, pityingly, “American?”)

That said, it was always nice to find someone who spoke English, so I could switch back to my mother tongue. French was fine, but I didn’t quite feel like I could express myself fully — it’s hard to convaey a sense of humor or nuance or show that you are hip to the latest slang in a foreign language.

Living in Switzerland, however, I also realized that I was a minority: a person who only spoke only two languages. Determined to overcome this deficiency, I signed up for German classes in the evenings. I was immediately floored. The teacher spoke no English and no French (and I spoke no German). I am sure she had some sort of immersion philosophy, and maybe she explained it to the class (in German), but I had no idea what was going on.

This experience, however, transformed my feelings about French.  After two hours of profound concentration and minimal comprehension, switching back to French was heaven — I could express my needs, politely converse, and understand the world around me. French was the new English.

The Rules of Civil Procedure are a foreign language (with slightly fewer irregular verbs). I can confirm this sentiment because my experience with the rules mirrors my experiences with French and German. In law school, Civil Procedure was my most difficult 1L class. I struggled with the difference between issue preclusion and claim preclusion, drawing lots of pictures to visualize the difference.

The new German

Only when I began my clerkship, and started using the rules on a daily basis, did it occur to me: learning the rules from a book is like learning a foreign language in high school. You can get the basics, but you need to spend some time using the language to learn its ins and outs.  Over the course of two years, I learned the ins and outs. But, when I left my clerkship and began practicing law, I had another realization.  Minnesota’s Rules of Civil Procedure were not the same as the Federal Rules. Minnesota’s Rules of Civil Procedure were the new German.

I learned Minnesota’s rules, and have even gone on to learn other “languages.” Each new forum (housing court, a new administrative body, or even a new district) has its own passport in the form of its rule book. Whenever I practice in front of a new body, I know that I need to find and read the governing rules ASAP. A few weeks later, I like to give them a second read as well.  Have you ever noticed that sometimes you miss things the first time because you just did not understand the system enough to understand the implications of certain rules the first time?

Despite the struggle that it is to learn a new set of rules, I have the highest respect for the importance of rules in our profession. Only a few weeks ago, an opposing counsel offered an “observation” about me — I seemed to take the “hallowed” rules very seriously. While my opposing counsel drew no conclusion from this observation (aloud), I suddenly pictured myself as a bit of a pedantic martinet, clinging to rules at all costs. After some thought, however, I came to a place of peace: I don’t love rules for rules’ sake — there is substance behind my passion.  My opposing counsel’s “observation” inspired this ode.

Level playing field

The rules are a great equalizer.  They may be difficult to learn, but once you learn them, they enable every lawyer to stand on equal ground with all the other lawyers. Whether you have practiced law for 20 years or two, whether you just moved here from Oklahoma, or whether you grew up next door to the judge in your case, the rules ensure that we all have an even playing field. We know when our briefs are due; we know how many interrogatories we can serve; and we know that we need to meet and confer before filing a motion.

I have heard some judges and practitioners specifically bemoan the practice of each district enacting its own local rules. “They are simply a trap for the unwary,” goes the argument.  But there can be no trap if the rules are written down and you take the time to read them.  The real trap? If local practice and custom was not written down a new arrival would be forced to learn by trial and error that parties were encouraged to file meet and confer certifications or that the judge preferred two courtesy copies. When there are no written rules, there is a risk that insider knowledge can trump skill. But, when we write down our rules, we open up our profession to everyone.

That’s the essence of the rule’s power — they transform our system from one that only elites can navigate into one that is accessible to anyone with a book (or the Internet) and a desire to master it. Like a haiku, the rules provide the form, but, within the parameters you have the ability to practice with creativity and flair. When you know the rules, you have the ability to express yourself.

Sybil Dunlop joined Greene Espel in 2010. Her practice focuses on representing individuals, corporations and public-sector entities in business and governmental defense litigation. She can be reached at sdunlop@greeneespel.com.

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