Commentary: 10 things lawyers should know (but don’t) about parliamentary procedure

By Jim Slaughter

Lawyers get pulled into meetings issues all the time, whether for clients or personally. Think of the types of meetings that attorneys advise—nonprofit associations, shareholder meetings, governmental bodies, homeowner and condominium associations, houses of worship, unions. Mishandling how decisions are made at such meetings can invalidate those decisions. Outside of work, lawyers serve on and lead all types of boards, commissions, nonprofits and charities.

As a result, learning some essentials of parliamentary procedure has benefits. Such knowledge can enhance credibility, result in better meetings, and make the difference between official actions and illegal ones. Sadly, parliamentary procedure is not generally taught in law schools. And what we think we know about parliamentary procedure often isn’t accurate. As Mark Twain warned, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” Listed below are ten well-known meeting “facts” that just aren’t so.

Myth #1: Parliamentary Procedure Doesn’t Matter

Courts have held that organizations meeting to transact business are subject to principles and rules of common parliamentary law, such as proper notice, discussion, and voting. In addition, organizations often have governing document language that requires following a particular parliamentary procedure book, such as Robert’s Rules of Order. State statutes now often prescribe procedural rules for certain entities, such as corporations, governmental bodies, and community association (HOAs and condos). Ignoring or incorrectly applying mandatory meeting procedures can lead to embarrassment, hard feelings, and even lawsuits.

Myth #2: Any Robert’s Will Do

There are lots of books with “Robert’s Rules” in the title. However, most of these books are earlier editions of Robert’s or knockoffs. There is always one official Robert’s that is the successor to earlier works. Each new edition brings changes to procedure. The current edition is Robert’s Rules of Order Newly Revised (12th Edition). If your organization’s rules specify the “latest edition” of Robert’s, this is your book. The newest Robert’s came out in late 2020 and can be identified by “12th Edition” on its cover and the fact that it’s 714 pages long.

Myth #3: Rules Are the Same for All Meetings

Rules aren’t one-size-fits all. Problems are common when large meetings behave too informally or small meetings behave too formally. Rules should be like clothes—they should fit the organization they are meant to serve. 

Most parliamentary manuals provide that board meetings and membership meetings are conducted differently. Large meetings must be fairly formal. However, formality can hinder business in smaller bodies. As a result, Robert’s recommends less formal rules for committees and smaller boards (where there are not more than about a dozen members present), such as:

Members may remain seated while speaking or making motions.

Motions need no second.

Discussion of a subject is permitted while no motion is pending.

When a proposal is clear, a vote can be taken without a formal motion.

There is no limit to the number of times a member may speak to a subject or motion.

The chair is typically a full participant and can debate and vote on all questions.

Smaller boards that dislike this informality may wish to follow more formal procedures. Even informal boards may choose to be more formal on important or controversial matters.

Myth #4: Seconds Always Matter

In a larger or more formal body, a second to a motion implies that at least two members want to discuss the motion. If there is no second, there should be no further action on the proposal, so seconds have their place. However, after any debate on an issue, the lack of a second is irrelevant. For less formal smaller bodies or on motions coming from a committee, seconds aren’t even required. 

Myth #5: Debate and a Formal Vote Are Required

Many noncontroversial matters can be resolved without debate through “general” or “unanimous” consent. Using this method, the presiding officer asks, “Is there any objection to …?” For example, “Is there any objection to ending debate?” If no one objects, you’re done. Debate is closed. If a member objects, the matter is resolved with a motion and vote. Unanimous consent allows an assembly to move quickly through non-contested issues. 

Myth #6: The Maker of a Motion Gets to Speak First and Last

The maker of a motion has the right to speak first to a proposal. After speaking, the maker has no more rights to speak than other members. In fact, the maker cannot speak a second time unless everyone else who wishes to speak to the issue has had a chance.

Myth #7: “Old Business”

“Old Business” is not a parliamentary term and suggests a revisiting of any old thing ever discussed. The correct term “Unfinished Business” makes clear the term refers to specific items carried over from the previous meeting. A presiding officer never needs to ask, “Is there any Unfinished Business?” but simply states the question on the first item (“There is one item of Unfinished Business . . . .”). Annual meetings generally have no unfinished business.

Myth #8: Yelling Out “Question!” Stops Debate

The Previous Question (or motion to close debate) is often handled wrong. Shouting “Call the Question” or “Question!” from the back of the room is not only bad form, it’s also ineffective. The motion to close debate is like any other motion. A member wanting to close debate must be recognized by the chair. The Previous Question requires a second and a two-thirds vote. Only the assembly decides when to end debate.

Myth #9: “Lay on the Table” Kills Sticky Issues

The motion to “Lay on the Table” (often shortened to “Table”) is often misused to sweep difficult issues under the rug. Robert’s provides that the motion is out of order if the intent is to kill or avoid dealing with a measure. Properly used, the motion temporarily delays a matter when some other urgent issue has arisen, such as an emergency or an important guest who is to speak. Once the urgent matter is over, the group can resume the tabled matter. Because the motion to Table is undebatable and only requires a majority vote, it should not be used to get rid of a matter. 

Myth #10: The Chair Rules the Meeting

The chair is the servant of the assembly, not its master. Put another way, the chair can only get away with what the assembly allows. If the rules of the assembly are being violated, any member can raise a “Point of Order.” Once the chair rules on the Point of Order, a member can move to Appeal from the decision of the chair. If seconded, an Appeal takes the parliamentary question away from the chair and gives it to the assembly. The assembly is the ultimate decider of all procedural issues.

Conclusion

Attorneys, whether for professional or personal use, should learn at least the basics of Robert’s Rules and parliamentary procedure. The benefits of a well-run meeting go beyond legal concerns. Proper procedure can turn long, confrontational meetings into short, painless ones. Eliminating these myths will bring your meetings more in line with proper procedure and result in shorter, more effective meetings. 

Jim Slaughter is President of Law Firm Carolinas, which has six offices in the Carolinas. In addition, he is a Certified Professional Parliamentarian, Professional Registered Parliamentarian, and past President of the American College of Parliamentary Lawyers. Jim is author of four books on meeting procedure, including two published this year: Robert’s Rules of Order Fast Track: The Brief and Easy Guide to Parliamentary Procedure for the Modern Meeting and “Notes and Comments on Robert’s Rules, Fifth Edition. Many charts and articles on meeting procedure can be found at www.jimslaughter.com.