Lawyers are creatures of habit.  We are steeped in it.  It starts with the training we receive in law school where we are taught a series of rules and procedures to be followed in all legal proceedings.  In litigation the rules cover everything from cradle to grave, starting from the initiation of a lawsuit through trial and final appeal.  The rules are intended to guarantee that each case will receive identically fair consideration and due process protections, irrespective of who the parties are or the nature of the dispute. Everyone is entitled to equal treatment and the process is the same for everyone.  Every case is handled the same way.

For example, the rules of procedure permit every party to discover information from all other parties.  Uniform conventions permit any party to request and receive responses orally, in writing or to inspect real property and other relevant objects.  These rules were designed to create uniformity in process so that every case, whether large or small, is administered the same as any other.  The rules were designed to prevent undue bias or benefit to any party by treating each case identically from a procedural point of view.

While the principle of uniformity – treating all cases alike – appeals to our basic sense of fairness it can be out of sync with the needs of contemporary society.  Uniform rules and procedures are inherently resistant and slow to change.  The law, in its attempt to provide a uniform regime  prides itself on adhering to long-established conventions.  For categories of disputes that have not changed much over the years (such as breach of contract cases, general torts, ,personal injuries, etc.), mandated consistency in procedure is of a lesser concern, since these cases do not cry out for change in the way they are resolved. [Read more…]