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Civil Litigation NY

    While that story can be understood and appreciated on an array of different levels (legal, moral,     common sense), the fact that the prosecutor could even make that argument proves,      
    undeniably, that the legal system regards procedure as a factor of exceptional importance.  
    Even the IRS does not mandate death for a late-filed tax return.

   2    Procedure versus Substance

                                         The practice of law is a combination of regard for both procedure and
                                         substance.   That is true not just in the practice of law, but in all aspects
                                         of life.   If you pick the exactly correct numbers for an $80 million 
                                         lottery, but you don't actually bother buying a ticket, then you were
                                         substantively correct, but, unfortunately, procedurally incorrect.  And
                                         that procedural incorrectness deprives you of that $80 million.  Life is, 
                                         in some respects, a constant battle between procedure and substance.   
                                         If you think about it, you will come up with an array of your own 
                                         examples of situations in your own life where procedure and substance
                                         were in conflict.

                                         While it may be difficult to win a case if you regard only procedure and
                                         have no regard for substance, and vice versa, it is quite possible to lose 
                                         a case if you disregard procedure or if you disregard substance.

                                         The common myth is that law is all about substance.   It is not.   Every
                                         lawyer can tell you about cases that were lost because of a procedural
                                         misstep. 

   Knowledge of the law is, of course, of tremendous importance for a lawyer.   But if the only 
   law the lawyer knows is substantive and he or she has no regard for procedure, I can pretty
   much guarantee you that that lawyer does not have a winning record.

   3    Become Familiar With Procedure

   If you are a lawyer, you already know the importance of procedure.  If you are a party to a        
   lawsuit (or a potential party to a potential lawsuit), it is very helpful for you to become familiar
   with legal procedure.   If, for example, you slip and fall on a defective Manhattan sidewalk and
   break your leg and are out of work for a month and incur large medical bills and experience
   substantial pain, it is good that you know that the statute of limitation is a bit more than a year.  
   But if you are not aware that an action against the city requires that a notice of claim be filed
   within 90 days, you may be out of luck. 

   Let's say you hire a lawyer.  For whatever.   A personal injury lawsuit, a contract dispute, an
   employment problem, a real estate matter, a tax issue, or anything else.   You should, of 
   course, inquire about the substantive law.   You should ask about the substantive law that is 
   in your favor and, certainly, the substantive law that may work against you.   But after you 
   have asked those questions, it is crucial that you ask the lawyer about procedural issues.

   Ask such questions as:

       - What steps are involved?

       - What are the filing deadlines?

       - Which papers must be filed?

   Sometimes something as simple as a typo can work against you.   Or forgetting to sign a 
   paper.   Or forgetting to have it notarized.   Or mailing the document this afternoon when it is
   required to be received by the court tomorrow.

   4    The Importance of an Experienced Lawyer

   Experienced lawyers know the importance of procedure in civil litigation.  Sometimes when I 
   am retained to handle a type of matter that may be somewhat unfamiliar to me, I start by  
   researching the procedural issues.  Lawyers who have been around know, almost intuitively,
   what substantive law applies.  They will, of course, research and evaluate the substantive
   issues -- like statutes and case law and the elements of each claim -- but it is quite often the
   procedure that may potentially block them from the courthouse door.    

   Neither you, nor any other client, wants to hear that you would have had a very strong case. 

   Perhaps in a perfect world, procedure wouldn't matter.   Perhaps in a perfect world all 
   mistakes could be forgiven, all errors glossed over, all missteps overlooked.   But if we lived
   in such a perfect world, there would be no lawsuits and no courts and no judges and no
   disputes.   I am probably not the first to tell you that the world is imperfect.

   If you think about it, a new lawyer (fresh out of law school and who only recently passed the 
   Bar Exam) knows an awful lot about substantive law.   He or she has spent three years 
   reading cases, messily underlining key passages in casebooks, being questioned by law        
   professors, studying through the night for exams, with only a hot cup of coffee (or two or 
   three) as their companions .  There is still much to learn, of course, but new lawyers are far 
   less knowledgeable about procedure than they are about substance.

   Conclusion

   When we talk about "the law," we are talking about both substance and procedure.   Both 
   are crucially important.   Make sure your lawyer is fully familiar (or is willing to become fully    
   familiar) with applicable procedure.  When looking for a lawyer for civil litigation in NY, make
   sure he or she is familiar with procedural issues.

   Television shows about lawyers usually focus on substance.   That's because procedure is 
    just not that interesting.   Filing deadlines.   Filing in duplicate or triplicate.   The time that the
    courthouse closes.   Attaching to your legal documents papers that can only be obtained from
    the record room, which may close at 3 p.m., not 4 p.m, as you thought.   None of these things 
    is dramatic or fascinating or colorful.  But it can make or break your case.
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                                                        Legal Guide:

                                        The Importance of
                                       Procedure In the 
                                Legal System

                                                                                             Written By: Michael S. Haber


   1   Death As Late-Filing Penalty

   You may have read, a while back, of a situation in which a death row prisoner filed his final
   appeal a day late and the prosecutor argued that respect for the law required that he be put to
   death and his appeal not heard.   Imagine that:  Death as the penalty for a slightly late filing.  
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