Hint of the Day: Read the Rules

Lawyers will often try to trick pro se litigants about the law. They may do this to other lawyers as well. I don’t know for sure because I am not a lawyer.

This is not legal advice.

This is a personal experience.

I filed a document in a federal case against Portfolio Recovery Associates, LLC, a giant debt buying company known to collect on alleged debts from portfolios they know to be inaccurate.

PRA had sent me about 2,000 pages of documents that were marked “confidential”. I am challenging the designation, because the vast majority or all the documents should not be marked confidential by PRA.

The problem is that the court does not allow non-attorneys to file electronically. The pro se litigant is usually self-represented because she cannot afford an attorney. But filing paper copies costs 10 cents per page, plus is time consuming. And four copies are required. So, with the cost of gas to drive to the courthouse to file, the 2,000 pages times four would cost $830 to file.

The court for the Eastern District of Arkansas is full of kind and professional employees. (There are a few bad apples, but that is another story.)

I am not going to name names, because the bad apples try their hardest to transfer their rot onto the good ones.

A few of the good ones gave me permission to file the 2,000 pages on a DVD, an electronic medium.

The paper filings are input to the electronic filing system by the clerk. This causes electronic service, through email, to opposing counsel.

But the 2,000 page DVD did not get loaded onto the system. It was confidential, for the time being, so it would not have been posted even if on paper.

I should have emailed a copy to opposing counsel. Opposing counsel sent an email, and rightly so, to point out my error.

Here is where an attorney, John “Jed” E. Komisin of the Troutman Pepper firm got a little tricky. He wrote:

“Please provide us a copy at your earliest convenience, and please make sure you continue to provide us with copies of all materials submitted to the Court in this matter.”

I replied that the exhibit I filed was the file they created and shared with me through Workshare.

Mr. Komisin’s reply: “Under the federal rules you are required to provide service copies of any materials filed with the Court to any opposing party.  This is to ensure that all parties are provided with any materials presented to the Court.”

Sounds logical and I had no qualms emailing a copy of the file back to its originator.

But what if it was not so simple? What if I filed evidence that was not in an easy format to reproduce? One example might be if a gun was used in the incident complained about. What does the litigant do if she files the gun as evidence? Find an exact replica and buy it for opposing counsel?

So, I did what I suggest you do if you ever need to know a rule. Read the rule book.

The Federal Rules of Civil Procedure are easy to find on the internet. They are free to read. They are not difficult to understand, once you gain a little legal vocabulary. (If you found this blog and read this far, it is likely you can understand the rules.)

Rule 5 discusses service of pleadings and other papers. (Something many attorneys and judges don’t even recognize is that motions are not “pleadings”.)

Rule 5 says:

(a) Service: When Required.

(1) In General. Unless these rules provide otherwise, each of the following papers must be served on every party:

(A) an order stating that service is required;

(B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants;

(C) a discovery paper required to be served on a party, unless the court orders otherwise;

(D) a written motion, except one that may be heard ex parte; and

(E) a written notice, appearance, demand, or offer of judgment, or any similar paper.

and “(D) Same as a Written Paper. A paper filed electronically is a written paper for purposes of these rules.”

The rules do not say “materials” as Mr. Komisin suggests. The rules talk about “papers”.

Nit-picky? Maybe. This is just an illustration of how attorneys will sometimes change one word of a rule or statute to change the meaning that the legislature intended. A favorite attorney trick is changing “and” to “or”. Super popular amongst the legal set is using “and/or”, which is not a word and is ambiguous. That is my new pet peeve.

The hint for the day is to look up every rule that is stated by the opposing party’s counsel. Even if they use quotation marks, there will often times be little, tiny variations from the actual language that change the meaning significantly.

These changes are made because the attorney is trying to trick you, the Court and/or the attorney is a slime bag.