Maxims: Substance over Form

September 23, 2013 § 7 Comments

“Equity looks to the intent, and will regard substance rather than form.”

I’ll let Judge Griffith do the talking here:

“Under this maxim, throughout the whole of the substantive law, equity deals with a matter according to its actual substance, and regards mere form as a secondary consideration. It pierces through the shell of a thing to what is within: it does not suffer itself to be circumvented by formal devices. And so, in procedure, it will not permit a mere technicality to conceal the real position of the parties, nor any mere form to divert the action of the court away from the actual merits of the cause. Mere appearances and external form will be put aside and the real relations of the parties will be ascertained and examined: no form will avail if the substance is wanting, and the form will be disregarded if the substance exists. This is not to be taken, however, as any declaration that essential rules of procedure may be disregarded. It means only that rules, when they do not go to the substantial rights of one of the parties, in a given situation, are not to be allowed to subvert, to mere technical form, the actual right of another.” Griffith, § 39, p. 42.

This approach is antithetical to what I call “Gotcha!” law in which the lawyers play procedural games in an attempt to catch the other in some overlooked dotting of i’s or crossing of t’s to justify sanctions or dismissal of pleadings or worse.  

It’s also directly opposed to discovery gamesmanship in which the parties try to hide assets, or create sham entities or transactions, or try to sidestep direct inquiries with misleading answers and a fog of insubstantial objections.

Proceedings in chancery should be more akin to a search for the truth rather than pharisaical quibbling over jots and tittles. “There is this general principle: A court of equity in the exercise of a broad discretion should see to it that wrong and oppression are not inflicted under the guise of legal procedure, but that justice be done as the very right of each case may demand.” Herring v. Sutton, 86 Miss. 285, 38 So. 235 (1905); Griffith, § 39, p. 42, fn. 32.

As caught up as we get in the procedural aspect of our procedural rules, we must never lose sight of the fact that they exist primarily to safeguard and protect substantive rights. Procedures are never an end in themselves. The rules point that out: “All pleadings shall be so construed as to do substantial justice,” (MRCP 8(f)); and “These rules shall be construed to secure the just, speedy, and inexpensive determination of every action,” (MRCP 1); and “These rules shall be construed to secure fairness in administration … to the end that truth may be ascertained and proceedings justly determined” (MRE 102).



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§ 7 Responses to Maxims: Substance over Form

    • Larry says:

      Wow. What if he had said that she had been using drugs in the children’s presence? Would that have been a violation? Don’t both situations bear on the dispute?

      But it does show that threats and posturing in correspondence accomplish little in a contested case. If you feel like your client has been wronged, file a motion and let the evidence do the talking.

  • Stewart Parrish says:

    As to the gamesmanship issue, it would help if the judiciary would have a uniform position. For instance, client sees an ex parte letter written by counsel opposite to the judge and cc to you. Client explodes and points out all the lies and micrepresentations the letter contains, and demands you write the judge to correct them as well as advance his/her version of the truth. You explain that it is not proper to directly contact the judge outside the presence of the other party. They respond, obviously, “Well they did.” One more reason to venture cautiously outside your local circuit.

    • Larry says:

      I have a pretty strict policy on that. A letter like you described is unquestionably ex parte and will draw a sharp rebuke and a warning not to do it again. In other districts, when I practiced, it was common and used pretty much to get in the judge’s ear and mind. I don’t like it at all.

      • thusbloggedanderson says:

        Sounds like an annoying practice, but I don’t see how a letter to the judge that cc’s opposing counsel is any more ex parte than a motion sent to the judge and served on opposing counsel. I would have thought the real issue was bugging the judge and failing to follow MRCP 7?

      • Larry says:

        Same thing. I don’t like it. Exchange insulting letters if that’s what you feel like you need to do, but leave me out of it.

      • Larry says:

        I have always had an allergic reaction to it, I guess because it’s a blatant attempt to influence the judge in a non-adversarial setting. A motion is proper under the rules and opens the door for opposing argument on the merits. A letter or cc to the judge is a one-sided, dead-end communication. I don’t like it.

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