Most people have a picture of the court process in their minds that is a composite of all of the courtroom dramas watched on the big screen and the little screen, from “To Kill a Mockingbird” to “Boston Legal”. Most people understand that picture is a caricature but do not understand what the real court process looks like unless they have been through it. Even when people have involved in litigation of some sort, the understanding is usually incomplete because people only see the process as it relates to them, and people do always understand the broader context and the principals behind it.
The court process looks different whether a person is involved in a small claims case, a murder trial, or a divorce proceeding. A probate estate process looks different then the foreclosure process. Differences exist from case to case, but there are certain underlying principles that apply in all cases, and those principles can be whittled down to one common denominator – due process.
People express a common frustration about the length of time litigation seems to drag on. “The wheels of justice turn slowly” is a maxim spoken with a knowing glance and a roll of the eyes.
A little understanding of the jurisprudence (which is a fancy legal term for the philosophy of law) is helpful to understand due process and to put it into some context. Having a context and some perspective (seeing the bigger picture) is helpful for understanding. Understanding is helpful in setting expectations. Having accurate expectations is helpful for anyone going through a court proceeding of any kind.
Delay is actually inherent in all litigation because of the principle of due process. Due process is guaranteed by the Fifth and the Fourteenth Amendments to the Constitution. The Fifth and Fourteenth Amendments provide that no person shall be deprived of life, liberty, and property without due process of law. Alternately, due process is about fairness.
We think of due process primarily in the context of criminal law, but due process applies universally. It means many things, but fundamentally it means notice and an opportunity to be heard. Due process means that each person is entitled to a fair and meaningful opportunity to know the position of the other party and to respond to it.
The principals of notice and opportunity to be heard are observed throughout the court process and explain a lot of the frustrating delay that comes to mind when talking about the “wheels of justice”.
Due process requires that Defendants be served with a Summons when Plaintiffs file a lawsuit. (Plaintiffs are the people bringing the claim; Defendants are the people defending the claim.) The law requires a Summons to be served in person to the Defendant or to someone having a close connection with the Defendant. A court proceeding cannot proceed forward without service of Summons (Notice), which provides an opportunity for the Defendant to be heard.
The rules that govern court proceedings, which are found in the State Supreme Court Rules and the Code of Civil Procedure, give a Defendant time to respond to the Summons by filing an “Appearance” and an answer (or other responsive pleading) to the Complaint. Those same rules apply to motions that can be made and heard during the process prior to the actual trial. Each motion must be accompanied by notice and provide an opportunity for response.
Courts are very protective in giving adequate opportunity for response in writing and to prepare before any motion or the trial is “heard” (argued in front of the judge). This is so because due process is a constitutional right. It is the foundation of our court system. Everything must happen in an orderly fashion giving utmost emphasis on protecting the right to due process to ensure that the process is fair for everyone.
Each party is also given the right to “discovery”, which is the right to discover the facts and the knowledge of the other party before having to present evidence and testimony to the judge or jury. Discovery is a part of due process so that everyone knows, or has the opportunity to know, what each other party knows before going to trial. Discovery also takes time. There are many other particular rules and nuances that come under the board umbrella of due process that will not be detailed here, all of which can be boiled down to the basic concepts of notice and opportunity.
Due process is also an elastic concept, as the phrase implies. The process that the law requires is the process that is due, giving consideration to what is at stake. Therefore, the “due” process required in small claims court is not as burdensome or protective (depending on your point of view) as the process that is due in criminal court. The process that is due for municipal ordinance violations is not the same process that is due for a murder trial in which the death penalty applies. The more that is at stake, the more demanding are the rules for notice and an opportunity to be heard.
The next time someone complains about the slowwheels of justice, knowing about the importance of due process will provide some perspective. The rules that apply to litigation are designed to afford due process to the people whose interests are being affected. We sacrifice immediate justice, like the Wild West, to provide a fair and meaningful opportunity for each person to present a meaningful case in court on an equal basis. Due process does not mean that a judge or jury is going to see things your way. It simply means that you will have a fair opportunity to present your case.
Not every delay can attributed to due process, though due process puts a built in “governor” on litigation. The more complex and/or the more serious the issues, the longer litigation tends to take. At the same time, delays are sometimes attributable to overcrowded court rooms, ill-prepared or procrastinating attorneys, purposeful delay tactics and other things, but that is the topic for another day.
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