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
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.
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.