Anyway, you know what I'm grateful for? Well, among other things, I'm grateful for the fact that while I've been in the legal business for little over two decades (that's 20 years for you millennials), I've not had to actually litigate anything. Knock on wood but no one has sued me and I haven't had to sue anyone.
That's actually pretty impressive given that I live in the litigation capital of the world (i.e. California).
Despite my good luck (so far), I have pity on people who come into my law library with problems. Take, for example the guy that come in the other day. He was embroiled in a family law matter and only recently his soon-to-be ex's lawyer filed a complaint for Joinder.
Typically, when people seek Joinder in legal matters, it means that they are looking to include a plaintiff or defendant that they neglected to include when they initially filed the complaint. In guy's family law matter, the Joinder action was being used to include his business and not just some unnamed person.
Here's where things get "fun." Thing is, I don't practice law and so I don't know the ins and outs of many legal wranglings. See, when you typically file for Joinder, you do it as a motion and not a complaint. This, apparently, is important when you go to file a response.
So, here's how things went down. Guy's ex's attorney files a complaint for Joinder. Note, he didn't file a motion for Joinder. When Guy was served with the complaint, he didn't know the difference between a motion and a complaint.
Going to the California Judicial Council Forms site, he searched under the Family Law forms until he found FL-373 (Responsive Declaration to Motion for Joinder and Consent Order of Joinder) which, to the casual observer would be what you would use - if what you were responding to was a motion.
Fast forward a bit and guy heads over to the court clerk to file his response. The clerk says, "that's not the correct form; we won't accept/file it." Guys asks, "What's the correct form?" Clerk says (in, what I suspect is their best Cosby accent), "I can't tell you [ha ha ha ha ha ha ha]. Go to the law library and they can help you find the form(s) you need."
The problem (according to a number of attorneys that I've spoken to) is that the court clerk is wrong. Guy's ex wife's attorney filed the wrong thing but because he's an attorney, the clerk doesn't question what is being filed.
Guy, not an attorney, tried to file the right thing but because it was not in the format recognized by the court clerk (and because the court system favors attorneys and hates pro se litigants), they would not accept it.
Two problems exist here. First, the court clerk is exercising authority outside his/her jurisdiction (i.e. the clerk MUST accept all filings and it is the judge to determine if it is correct). Second, clerk assumed that the attorney filed the correct document because he is an attorney. Fact is, everyone screws up.
That you have the initials Esq. after your name does not make you perfect or immune from screwups.
Another thing to note is that every time anyone comes to the my law library after they've been rebuffed by the court clerk, they ALWAYS say the clerk told them the law library has the forms they need. Always.
So, Guy hightails it to the law library and is standing in front of me and I can't figure out what he's trying to do. Why? Because Joinder is typically filed as a motion - NOT a complaint. So, I'm stumped.
I'm thinking, "Guy has form FL-373 all filled out detailing his wishes (i.e. that the complaint for Joinder should fail). The problem is that this is a complaint - not a motion (and the clerk, for whatever reason, won't accept the response to a motion). So, you can't respond to this complaint like I would a motion."
OK, that looks like catch-22 thinking but it's my brain and it's worked for me this far, so leave...wait....why not just use what guy has in his completed FL-373 and put it on pleading paper (like you would to respond to a complaint)?
Wait, what in blazes is pleading paper?! The term “pleading paper” is used to describe how to format legal documents under Title Two of the California Rules of Court when a pre-made form is not available.
Good thing for you, if you click THIS LINK, you will have access to a great sample Pleading Paper template.
Anyway, with Guy still standing in front of me, I casually suggest that he copy the language in his completed form FL-373 and paste it in/on the pleading paper template and file that with the court (and see what the clerk does).
Do you see what happened there? Guy took the information that was already contained in his motion response and copied it onto pleading paper.
Even thought that's not what Guy should have had to do, but for whatever reason, and as far as the court clerk is concerned, Guy was hoping (finger's crossed) the court clerk would accept and file it.
Turns out, that did the trick. Who knew?!? The court clerk accepted Guy's jerry-rigged response and Guy was able to move on with the case
What a freakin #&^*%*^$%*& crock show, but that's law and, apparently, that's how things "work" in the law business.
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