HOW WOULD YOU OVERHAUL MRCP 81?
January 22, 2013 § 6 Comments
Everyone who has had some experience with MRCP 81 has an opinion about it.
Most chancery lawyers and judges have come to grips with it over the years and have found ways to make it work. Some, however, have grown to hate it. Changing or eliminating the rule is a topic touched on and even seriously discussed at judges’ meetings.
If you could change Rule 81, would you? And, if so, how would you change it?
Every time I ask an opponent of the rule to catalog the objections and outline how it should be changed, I get fulmination, not recommendation. What I want to know is:
- what do you perceive to be the problems with the rule?
- what about it has caused you problems?
- if it is not working in a particular district, why do you think that is?
- if we were to eliminate the rule, how should we deal with short-notice matters like temporary hearings and the like?
- does chancery court need its own, unique procedural rules?
There are other questions, I am sure, but those are a start.
I invite any lawyers or judges to comment on this, or, if you prefer, email me at primeauxl@yahoo.com.
This is not an idle exercise. I am on the Supreme Court Advisory Committee on Rules, and I am hearing rumblings that this is a matter that will come up for discussion soon. I would appreciate as much input as I can get. Many of you tell me you read but don’t comment. This is a time for you to have your say.
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Larry:
Reggie’s comment overlooks the fact that all parties have a right to conduct discovery before being put to trial. The return date of the Rule 81 summons begins the 90 day discovery process.
True, but I thought he was mainly referring to temporary hearings and other seven-day matters.
Rule 81 is like chess. It is great if you know how to play and your opponent doesn’t. Quite often the problem is not with the rule, but how and by whom it it being applied. It is like most of the rules in that more lawyers don’t understand them than do. Regards, Derek
Judge P … So true. Judge Mason here in Meridian has said many times that most times the problem is not with the rule; it’s with the lawyer who has never read the rule.
It is my experience that the date on a Rule 81 is considered by courts to be a “return day” and not a hearing date. This is so even if the matter has been set and the person served for weeks. This costs litigants money. Their lawyer has to set the date, show up, and the matter is automatically continued. This is costly and wasteful. I know there would be exceptions, but I would like to see it in practice that if a person is served a certain length of time in advance of the Rule 81 date the matter will go forward like anything else and not be automatically continued.
Thanks for that comment. I have found varying practices, and certainly no hard and fast rule. I’ll make a note to bring that up.
As I expected there is no groundswell of discontent with R81. Most lawyers have learned to live with it, as they have all of the other MRCP, MRE, UCCR, etc., etc., etc.