The new legal vocabulary word for this week is "dilatory." Do not confuse this with "depilatory," which means to remove hair, i.e. Nair or a painful wax. Although the law can sometimes feel like your hair is being yanked out, "dilatory," in a legal context, means to delay court proceedings in an abusive manner. The root of the word is "dilate," like when the optometrist puts those drops in your eyes, dilates or enlarges your pupils so your eye color is black and you have to wear ugly plastic sunglasses after your appointment. Acting in a dilatory fashion is dilating the length of the lawsuit so that it becomes a black hole of time and delay.
Attorneys are often wrongly accused of being dilatory. I imagine that this is compounded by the instantaneous nature of our current lives. You look down at your phone and 15 people have emailed, Facebook has updates for you, your children are texting you, you have three missed calls and have voicemail. An entire new generation has SnapChat DNA (ask your nearest twenty-something). Everything is happening right-now in your pocket.
Then you get served with a lawsuit or get involved in a legal proceeding and time seemingly stops. Nothing happens instantaneously. You are now involved in the legal machinery known as "procedure."
The first class you are required to take in law school is civil procedure. I was an English major when I went to law school and had the passing thought that the law school faculty was going to give me lessons on how to be civil, but the class was all about studying the legal rule book. Imagine an entire class devoted to studying the rules of board games like Monopoly and Risk and you can get an idea of how fun the class was.
The next part of my lawyer's education after graduation was going out in the real world and observing what procedure looks like in its natural environment. Again, think about how playing Monopoly with your siblings varies from the actual Monopoly rules. (Nowhere does it say in the Monopoly rules that you put money in the middle of the board and if you land on "Go" its yours, but in certain families Monopoly cannot be played without the money in the middle.) In the law, we call them "local rules."
So why are lawyers and the law so concerned about procedure? The Fifth and Fourteenth Amendment are a good place to start. We as citizens are guaranteed the Constitutional right to due process of law from our state and federal governments. The uncontroversial aspect of this right is that our liberty and property are protected by procedural due process. Your liberty and your property can't be taken by the government without you knowing why and giving you a chance to defend your liberty and your property.
I run into clients daily in my bankruptcy practice who are in fear for their liberty and property when they have received no written legal notice from any court. Yet my clients are terrified that someone is going to come and take their property, take their money or lock them in jail. Somehow this fundamental protection of our Constitution has not sunk in for much of the general public. The law provides us with security and peace of mind that the government can't just take our money, take our house or throw us in jail without giving us a fair opportunity to defend ourselves.
The news (probably instantaneously popping up on your smartphone) is filled with stories of people on the wrong side of the law. Yet, the examples of procedural due process being denied are almost non-existent and when they do show up in the news, people are outraged and the government's actions are seen as controversial or unconstitutional. All of the recent stories on search warrants and NSA spying are in part stories that question the government's compliance with the Due Process clause, since there are procedures for procuring and executing search warrants.
The process itself is a protection. The process also slows things down. Nothing should happen as quickly in the law as it does in our lives. In a society where thought and introspection are overwhelmed by a constant stream of data, the law and the courts need to be a place where all of a society can pause, take a breath, follow the rules and make decisions that benefit us all.
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or firstname.lastname@example.org.