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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