The (Court) House Always Wins


Ours is a “nation of laws.” But seeking relief under those laws, one quickly finds that ours is a “nation of rules”. There are the Federal Rules of Civil Procedure. The Federal Rules of Criminal Procedure. The Federal Rules of Bankruptcy Procedure. The Supplemental Rules for Certain Admiralty and Maritime Claims. (Now an appendix to the Federal Rules of Civil Procedure, until 1966 these were a set unto themselves.) It’s the legal equivalent of four national sports: baseball, basketball, football, and soccer. (Admiralty law is much like soccer in the U.S.; someone somewhere plays that gig, but not anyone that I know.)

In baseball, the teams in the American and National Leagues play a slightly different game: The American League allows the use of a Designated Hitter (DH) to bat in place of the pitcher; the National League expects their pitchers to hit for themselves. (Using a DH is not required, but no American League team would forgo the opportunity.) No other sport, according to the irrefutable Wikipedia, has such a difference in rules.

During the 1970’s and 80’s, this difference in rules only became an issue during the World Series. Games played at American League ballparks required both teams to use a DH to bat for the pitcher, an opportunity for National League teams to insert some additional firepower into the lineup. Games in National League ballparks required both teams to have their pitchers hit for themselves, leading to interesting attempts by American League pitchers to bat for the first time all season. In 1989, for the first time, teams began using a DH for All-Star Games held in American League ballparks. When interleague play began in the mid-1990’s, this difference in rules affected regular season games as well. Since 2010, all All-Star Games allow for the use of a DH. While some have proposed harmonizing these rules, everyone can agree that there is some entertainment value in them. And without the shibboleth of the DH, how do you separate the true baseball fans from the fair-weather folk?

But that’s not all. I knew that the old Astrodome had some unique ground rules—sometimes resulting in a typical home run turning into a single—but I recently was informed that Major League Baseball imposes a set of Universal Ground Rules that, it turns out, are not “universal.” In fact, all but four stadiums (the Chicago White Sox, Kansas City Royals, Minnesota Twins, New York Yankees, and New York Mets) impose additional ground rules. For example, in the friendly confines of Wrigley Field, a fair ball that enters the vines on bleacher wall and rebounds onto playing field is in play, but a fair ball that lodges in or under grates in left or right field gives runners two bases. Proper enforcement of this rule can cost teams runs, as happened to the Chicago Cubs themselves.

The sport of federal litigation is a lot like baseball. The Federal Rules of Civil Procedure are the “universal grounds rules” in each courthouse. But each District Court has its own set of rules—known as “local rules”—that apply only to cases in that courthouse. Each Court also has its own set of Administrative Procedures and also may have a set of standing orders that apply to every case filed in that Court. Finally, the judges themselves may have their own standing orders or procedures for cases to which they are assigned. Many of these rules and procedures developed from particular issues within a District Court or a particular judge’s Courtroom.

Sometimes, a Court in one district has solved a problem with which another Court cannot seem to cope. Sometimes, a Court has a rule that is cumbersome, unnecessary, or worse: a rule that conflicts with the Federal Rules of Civil Procedure. This blog exists to examine these rules from a player’s perspective—that of a litigator practicing in multiple federal courts. The goal is to identify and discuss the best (and “worst”) practices in courthouses and courtrooms across the country and to bring attention to particular rules that a visiting “team” might not know. As we all know, the (court) house always wins.

Play ball!

First published May 21, 2015. Updated June 16, 2015.

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