Are courts &quot;duty-bound&quot; to enforce Rules of Procedure? In Hunter v. Serv-Tech (E.D. La. 2009) referenced in this answer, the court denied a critical motion on a technicality and explained its reluctant decision saying: [T]he Court is duty-bound to apply the law as it is written, and as written the Rules enact a policy of requiring all 12(b)(2)-(5) defenses to be made by motion, once, prior to filing an answer. [Emphasis added] This statement appears to equate procedural Rules with law. (In this case the Federal Rules of Civil Procedure.) Is this consistent with American jurisprudence? To what degree are U.S. courts &quot;duty-bound&quot; to apply rules of procedure? Prior to reading that I thought that courts had broad discretion to waive rules in the interests of &quot;justice&quot; or &quot;equity.&quot;
“Like the Federal Rules of Criminal Procedure, the Federal Rules of Civil Procedure are as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rules' mandate than they do to disregard constitutional or statutory provisions.&quot; Chambers v. Nasco, Inc., 501 U.S. 32, 66 (1991). The civil and criminal rules of procedure are established by the U.S. Supreme Court, which promulgates them under authority delegated by Congress in 28 U.S.C. 2072. Some rules provide the courts more flexibility in their application than others, but the courts may not simply ignore them any more than they could ignore a Supreme Court precedent. For instance, in a case where the trial court dismissed criminal charges based on prosecutorial misconduct, the government appealed, arguing that the misconduct hadn't prejudiced the defendant, and Criminal Rule 52's &quot;harmless error&quot; rule requires the court to essentially ignore errors that don't effect the defendant's &quot;substantial rights.&quot; The defendant argued that the court's supervisory authority permitted it to dismiss the case to deter future misconduct. The Supreme Court reversed the dismissal, agreeing with the prosecution that a court has no authority to dismiss the case based on error that the rules of procedure order it to ignore: Rule 52 is, in every pertinent respect, as binding as any federal statute. &quot;Courts have no more discretion to disregard the Rule's mandate through the exercise of supervisory power than they do to disregard constitutional or statutory provisions through the exercise of such power.&quot; Bank of Nova Scotia v. United States, 487 U.S. 250, 250 (1988). Other courts have concluded that this standard applies to the Federal Rules of Civil Procedure, as well. See, e.g., Stone Container Corp. v. United States, 229 F.3d 1345, 1354 (Fed. Cir. 2000) (&quot;[T]he Federal Rules of Civil Procedure, like the Federal Rules of Criminal procedure, are “as binding as any federal statute.”); S.E.C. v. Selden, 484 F. Supp. 2d 105, 107 (D.D.C. 2007); Sieb's Hatcheries, Inc. v. Lindley, 13 F.R.D. 113, 119 (W.D. Ark. 1952); Westland Oil Co. v. Firestone Tire &amp; Rubber Co., 3 F.R.D. 55, 56 (D.N.D. 1943). tl;dr: The Rules are rules of procedure. They must be adhered to.
The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? No. It will be true only if they make that clarification in the clause or a properly added amendment. The clause currently has no indication that it is limited to "current client and any past clients that [you] have work[ed] on". The CEO's &amp; lawyer's refusal to amend the clause so as to make it consistent with their attempts [to persuade you] would be a red flag. Their inconsistent representations to you suggest that they are not planning to honor the covenant of good faith on which all contracts are premised. Should I expect the CEO to offer a fair contract or is this something you read and negotiate? You should require a contract that seems fair to you. And by "to you" I mean that it has to be in line with your expectations regardless of the average conditions in the labor market. Negotiations are not binding. They are merely a preamble to a contract, and that contract is binding. This is why you should reject a contract that falls short of your requirements. Some clauses are unlawful and/or void and unenforceable as unconscionable or for contravening legislation (unlawful clauses can and do arise even if drafted by attorneys). Thus, although you might not have to worry about those clauses in particular, the company's mere attempt to include them in a contract should alert you of the high risk of ending up with other abusive terms &amp; conditions which are binding and enforceable nonetheless.
In my experience, varying jurisdictions can and do differ as to the myriad ways these disputes are resolved. Contract law is one area where the judge has a lot of discretion. This is definitely true in state courts, even from judge to judge, and can even be true in the federal level-The 9th Circuit has some wildly different appellate decisions when compared to the 1st Circuit, and so on. I say this not to be argumentative, but to highlight the importance of careful and concise drafting that fully explicates the bargained for exchange, as there can be a vast amount of judicial subjectivity that goes into determining which rules pertain to certain situations. "Conflicting or competing clause" cases are now some of the most commonly litigated contract disputes. This is largely because the last 20 years has seen a huge influx of people "drafting" (more like piecing together) contracts without benefit of qualified counsel. This is particularly true because lay people do not generally create a specific insturment like an attorney would - from scratch, with definitions and terms specific to the transaction. Rather, they go online and find "form" or model contracts that they feel are close enough (which are almost always missing key components), and then they type in their own terms, or even write them in. Because this is so common, most jurisdictions follow the rule that hand written terms supersede pre-printed terms; likewise, type written terms will take precedence over pre-printed terms. Specific terms also carry more weight than general terms. Specific terms will usually be given precedence over general terms, as these are seen as creating a specific exception to the general terms. For example, if Clause A in your scenario said: Written notice must be provided at least five days in advance of (any) change... (leaving out "to price"), then clause B would prevail because it would be more specific than the more general term (A), which in my scene would pertain to any change whatsoever (this is assuming the whole of the agreement did not shed light on the issues more fully). In your hypothetical, these are both specific terms. In that case, the court would first examine the entire contract and all addendum, specs, plans, etc. when interpreting competing or conflicting clauses applying the fundamental principal that a contract should always be interpreted as a whole - not clause-by-clause - and not section-by-section. Contracts will often have numerous parts with portions incorporated specifically by reference, or numerous documents that may be integral to the transaction, If the parties agree to what constitutes the various parts of the contract (even if not incorporated) the entirety of the transactional documents may be considered by the trier of fact (and law). Once examined, if a proposed interpretation makes other portions of the global agreement meaningless, illogical or unenforceable, and another party's interpretation is in keeping with the document as a whole, that is the interpretation that will typically be adopted. Assuming this analysis doesn't work to resolve the issue, then the court would look to see if there is an order-of-precedence clause, which is a clause that lays out what parts of the contract / types of clauses take precedence over others (ex. written requirements take precendee over performance requirements, addendum hold less import than the signed agreement, schematics hold less import than addendum, and so on). Assuming this there is no order of precedence, the court will look first to see if the contract was negotiated back and forth, with terms being modified with each draft. If Yes, then the court will except extrinsic evidence (parole evidence) that goes to the intent of the parties bargained for exchange. If not, the contract term(s) will be construed against the drafter and in favor of the one who signed the others' instrument. So, as you can see, there is no clear answer to what seems to be a simple issue. This just goes to show: Lawyers seem expensive when you decide to hire them - Lawyers are expensive when you have to hire them, because you decided not to in the first place!
There is a special type of law enforcement officer, called a &quot;bailiff&quot; who is charged with maintaining order in a courtroom, and often, a bailiff is a direct subordinate of a judge who must follow the judge's orders. Judges can also issue special kinds of court orders, called &quot;writs&quot; which are a direction to a law enforcement agency generally to take certain action. But, in these cases, the law enforcement agency is effectively an &quot;independent contractor&quot; in relationship to the judge with considerable discretion regarding precisely how and when a writ is carried out. Somebody in the law enforcement agency to which a writ is directed is required to take action, but no individual law enforcement officer is personally compelled to comply with this order. The quote in question is not a statement about the legal authority of a judge, however. It is a statement of &quot;realpolitik&quot;. The judge can't physically force or threaten law enforcement to do what they are told to do by a judge. The cops have the guns, not the judges. Instead, the judge relies upon law enforcement obeying the judge's orders because that is what law enforcement officers do. It's right in the job title. But, if law enforcement chose to ignore judges, in general, there is very little that judges could do about that (and in some countries, law enforcement does routinely ignore judicial directions). Some forms of executive branch authority to defy judicial orders is even legally codified, most starkly in the case of the pardon power.
Nothing prevents firms from putting clauses like that in the disclaimer. If you're talking about goods (rather than services), much contract formation is governed by the Uniform Commercial Code, which 49 states have adopted (and which Louisiana has adopted part). However, the real question relates to whether that kind of language will be enforceable in court. A common way to attempt to avoid litigation is to insert a clause that requires arbitration of disputes (instead of litigation). The Supreme Court upheld the Federal Arbitration Act (FAA) in Southland Corp. v. Keating, 465 U.S. 1 (1984), so this can be successful. Contracts that have class-action arbitration provisions are a little dicier, but in AT&amp;T Mobility, LLC v. Conception, 563 US 333 (2011) , the court held the FAA preempts state laws that disallow class arbitration.
Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no. But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma, which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) &ndash; those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) &ndash; in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong &ndash; especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform &ndash; the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook!
When it comes to the obligation to tell the truth, there isn't all that much difference between a lawyer's obligations and those of a pro se litigant -- at least as far objective truth. But not every question has a single truthful answer. Professionalism rules impose some higher standards on lawyers in cases that are a bit murkier than just asking, &quot;Were you at the Capitol on January 6?&quot; In the United States, the analogous rule lays out some bright-line rules. Rule 3.3: Candor Toward the Tribunal (a) A lawyer shall not knowingly: make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Subsection (a)(1) gives a good example of where the duties of honesty diverge for lawyers and pro se parties. If a plaintiff tells the court honestly -- but mistakenly -- that he lost $1 million in profits, but later discovers that he only lost $100,000, his lawyer has a clear obligation to correct that statement for the court; the pro se plaintiff's obligation is not clear. Similarly, if a plaintiff tells the court that he is entitled to those lost profits if he can prove elements A, B, C, and D, but later learns that the Supreme Court has also imposed a requirement that he prove E, the lawyer has an obligation to notify the court of this development; the pro se plaintiff does not. On the &quot;overriding&quot; language: I don't read it as generally having any effect on a lawyer's duty to be honest to his client. Instead, it means that the lawyer's duty to the court overrides the lawyer's duty to the client. In either of the above hypotheticals, for example, the lawyer acted honestly and ethically in presenting his evidence and argument, even though his statements turned out to be false. Correcting the record on either point would reduce or possibly eliminate his client's likely recovery and be against his client's best interests. Once the lawyer discovers the error, he is therefore faced with a conflict of interest: he has a duty to act in his client's best interest, but he also has a duty of honesty to the court. Chapter 13 says that his duty to the court overrides his duty to his client.
A summary is here: see for example Section 35 of the Judiciary Act of 1789: 'in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel'. In the same vein, Adams v. United States ex rel. McCann, 317 U. S. 269 held that "an accused, in the exercise of a free and intelligent choice and with the considered approval of the court, may waive trial by jury, and so, likewise, may waive his constitutional right to the assistance of counsel". In Faretta v. California, 422 U.S. 806 it is held that this extends (via the 14th) to state courts. As to the expression "practice law", maybe the meaning of this expression is taken to be self-evident, though clearly it is not. Statutes that prohibit that act for non-lawyers generally specify things such as "for another person" or "holds himself out as entitled to practice law".