Statute, Rules and the Effect of Common Law

The main focus of this site is to offer a omnipresent view of our Judiciary, but there will be a great deal of information concerning the area of Family Law because it comprises such a large percentage of the average user of the Court.

Family Law in Washington is governed by a combination of Statute, Supreme Court Rules, Local Court Rules, and Common Law or sometimes called Case Law, and the Constitution (both Federal and State).

Each is unique, each is relevant, as a litigant you should have a basic understanding of all.

 

Statute-

The most straight forward of them all, the Legislature passes bills which then become laws and are codified by the Office of the Code Reviser and find their way into the Revised Code of Washington. These are for the most part easy to read and understand because they are written in clear and plain language. For the most part Family Law is located in Title 26.

To the lay person going to court and reviewing a RCW dealing with the specific issue at hand and think “I have this in the bag Statute is black and white and there is no way I cannot prevail” only to have the Judicial Officer rule in the opposing parties favor at the hearing. Remember Judges have the power of Discretion and what that means is that if the Judge thinks it is in the best interest of Justice he/she can ignore Statute and barring a Constitutional violation the higher Appeal Courts can or will uphold that ruling.

Think of Statute as a guide, not something carved in stone.

 

Rules-

There are several set of Rules to be familiar with, the Supreme Court Rules which there are many but as for most everything in this site is geared towards Civil matters I will try and stay on that line, so Superior Court Civil Rules commonly called “CR” followed by a number (CR60 for example), these are a must know for going into Court. There are Supreme Court General Rules of Application, again many subsections but generally speaking the General Rules GR followed by a number and the Evidence Rules ER followed by a number are ones you should study. Then you will be expected by the Judge to know the Local Court Rules or LCR’s each Court is unique, most if not all Courts will have them published online, find yours and study them, a Local Judge won’t think twice about levying a $500 fine for mistakenly noting a hearing in front of the wrong Judge. Spend as much time as you can learning the rules because- The Judiciary has ruled that Court Rules trump Statute so if there is a conflict between the two Court Rule will prevail, but again the Judge has the power of “Discretion” if it is in the best interest of Justice to veer from them (and yes the pursuit of Justice may be ruling against you).

Think of Court Rules as being written in Ink.

 

Common Law or Case Law-

Common Law is sometimes called Case Law is it the culmination of previously entered Court ruling on cases which have similarities like subject matter, jurisdiction, or application (interpretation) of Statute or Law. Finding applicable case law for a pro se litigant is much harder, most attorney’s and the Judges have access to fee based services like West Law or Versus Law, but for most the financial commitments required are just not possible, one great fee resource for case law is Google Scholar takes some hunting around but it is a good tool. Some Superior Courts have Law Libraries which are open to the public and you can access the fee based services (computer time and/or copying charges may apply) I find that I do not like spending additional time in Courthouse to be pleasant, other than trolling the halls of the second floor. The power of Common Law can be found in RCW 4.04.010 and BTW this is one of the few Statutes the Judges hold dear to their heart. Chances are that if opposing counsel is raising solid case law arguments you may not prevail.

Common Law is Written in Ink although sometimes invisible Ink

 

The Constitution-

Both US Constitution and the Washington State Constitution apply always, but generally speaking for Civil matters in Washington rely on the local Constitution, the Federal Courts really go out of their way to defer Family Law Matters back down to State Court, so remember if you think you are going to file a Federal lawsuit against all the people who screwed you in State Family Law case you will scare nobody, the threat of a well publicized CJC complaint or starting your own website has more teeth than threat of Federal Civil Rights Lawsuit, my opinion.

The Washington Constitution is broken up into several Articles, generally I, IV are the ones to really know, and by know I mean you should be able to stand up at a moments notice during court and make the objection with the correct cite “I object your honor Debtors Prison was abolished Article I section 17 Washington State Constitution”.

Constitution is written in Stone.

 

A well written Motion or Brief will contain elements of all of the above as cited authorities, and typically in a family law case even a pro se litigant can write and argue on par with most lawyers. Family law lawyers really are not very good as a whole, they are successful for many reasons and usually gender of the litigants is the predetermination factor, sorry men.

If you have a lawyer representing you before you just blindly sign the response to OC (Opposing Counsel) motion and email it back take a few minutes and review it, look for case law cites make sure they included at least one Constitutional cite, and make sure what made it onto the declaration are your words.

One of the reasons Family Law has a reputation for defects and poor rulings is because the lawyers who argued similar cases years before you made shit arguments and never were successful at the Appeal Court level and case law evolved from there. Where are those lousy lawyers from 10 years ago now? Chances are today they are the same person sitting in front of you wearing a Black Robe, lousy lawyers make lousy Judges and guess who picks the Judges? Your local BAR Association Judicial Selection Committee (KCBA is here).

After getting clobbered in Court try and focus your frustration at the responsible party, it is not your child’s other parent, it is not your lawyer (well maybe it is in part), it is not opposing Counsel (well maybe it is in part) it is the Black Robe, the system is created by design not happen-chance and the Judges are the architects.

Finally remember a Black Robe does not make a Judge, address all Commissioners as Commissioner they have not earned the right to be addressed as Judge.

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