Civil Procedure Can Be Everything In Litigation

Civil procedure can be everything when you’re representing yourself in court. That’s especially true when you’re up against a lawyer. Needless to say, lawyers are masters at civil procedure. That’s what makes them lawyers.

Lawyers can use civil procedure to knock out pro se litigants early and move on to the next hapless pro se litigant. In some cases, especially in small claims courts, they can fell ten, twenty, even fifty pro se litigants in one day with the help of civil procedure. Bam! Boom! Crash! Splat!

Civil Procedure and Substantive Laws

If you don’t want to leave a case early, broken, and bloody, get yourself some civil procedure. If you’re like most pro litigants though, you don’t even know what civil procedure is. Civil procedure is not as difficult as it sounds. Also referred to as procedural rules, civil procedure is simply a body of laws for enforcing and applying substantive laws and for standardizing litigation. For example, rules for serving a summons and complaint are procedural.

The laws we’re more familiar with, substantive laws, tell us what our rights are and what we can and cannot do. They tell us how to behave, and they go to the merits of a case. A rule that says you can collect damages from an auto injury if you can prove negligence is a substantive rule. Neither type of law is more important than the other, but it could hurt your case if you don’t know the difference.

Get a Fair Hearing in Court

No one expects a fair outcome when one side has a lawyer but the other side doesn’t. Level the playing field with Courtroom5.

The main thing to remember, however, is that civil procedure can come into play before you even reach the merits of your case. The scenario below will put the laws in context to give you a better idea of the difference.


Elijah and Simon are brothers who shared an apartment near the college they attended. One day, they saw black dots on their bathroom ceiling. Thinking it was mold, they contacted the landlord and asked that he remove the mold.

The landlord insisted it was not mold but promised to send someone over to check it out. The landlord’s repairman did not come that week, nor the next. Three weeks later and two days before Elijah and Simon packed to leave, the landlord appeared with his repairman and threatened to sue if the brothers moved out without paying the remaining months on their rental agreement. Elijah and Simon refused to pay.

Since they’d already rented another apartment, Elijah and Simon insisted the landlord return their deposit and final month’s rent, which totaled $3200. The landlord had the place inspected, and the black spots were indeed mold. He had it cleaned up.

He told Elijah and Simon that as a favor to them, he would let them stay and continue the current rental agreement or let them go without paying any more on the agreement. But he would not return their deposit or their final month’s rent.

The brothers were angry at the landlord and felt cheated. They had paid first and last month’s rent plus a deposit on a new apartment. They sued the landlord for $3200.

Issue 1. Procedural Law

In response to the complaint, the landlord moved to dismiss, stating that the court had no jurisdiction. The landlord argued that landlord tenant issues like this one should have been brought in small claims courts where most cases of this type were handled. He also argued that an amount for far less than $10,000 is best handled in small claims court.

What makes the issue procedural? It doesn’t go to the merits of the case. The judge making the decision will not care about black mold or whether Elijah and Simon paid rent on time. Rather, he will rely on the rules for the proper way to file a lawsuit. Such rules make litigation more efficient.

Outcome. Elijah and Simon took their case to superior court even though small claims courts in their state can try cases up to $10,000. Fortunately for them, the superior court can accept cases valued at as little as $3000. They had a choice, and they chose superior court. They win on this procedural issue.

Issue 2. Substantive Law

In their complaint, Elijah and Simon alleged that the landlord failed to return their deposit, broke the implied warranty of habitability, and broke the contract they had with him. All these issues are substantive.

What makes the issues substantive? The statutes governing return of the deposit, implied warranty of habitability, and contracts all go to the merits of the case. They answer who did what to whom. The entire lawsuit is about whether the landlord acted properly when he kept the money.

Outcome. Elijah and Simon conduct their discovery to deal with the merits of the case. They prove all the elements required for failure to return a rental deposit and breach of the implied warranty of habitability. At some point they gave up on the contract issue, but that didn’t matter. They had the other two. With that, they got their money back plus court costs. They win on the substantive issues.

Procedural laws are most often the first you’ll come up against. That’s why so many pro se litigants find themselves on the losing end of a case before it really gets started. Procedural laws are difficult for us because the case is our only one. We’re passionate about it. We want to get to the meat of the matter. Who cares how the defendant found out about the case? The courts care, so you must care too. You don’t want to be kicked out over something completely avoidable.

So, give civil procedure the attention it warrants.

5 1 vote
Article Rating
Notify of
Inline Feedback
View all comments