Saturday, September 22, 2012

What can I do?

I received an interesting question late one recent Friday afternoon. Essentially, the inquiry was on the subject of a Judge's request for certain information from an injured worker. The worker had filed a motion, and instead of an order, she\he received a phone call requesting more information. 

The injured worker did not think it appropriate that she\he was being asked to provide certain information to the assigned judge. The injured worker at least perceived that there was no basis in law or rule to require the information, as prerequisite to entry of an order. The original question to me from this worker was "what can I do?"

I receive similar inquiries from a variety of attorneys throughout the year. They have run up against something unfamiliar, or in their perspective downright inappropriate, and are unsure how to proceed. I try to preface all of my replies with the same "I can't tell a judge how to rule and I can't give you legal advice." I usually then try to provide some guidance, when possible. This is never legal advice, or specific instruction on how to proceed, but I find some attorneys are benefited by just sharing some ideas or perspectives. A little "brainstorming" can be very productive.

Unfortunately, too many attorneys contact our district offices and seek advice from staff. They find themselves uncertain how to proceed and they resort to calling a judge's secretary for advice. Attorneys should avoid this course. Secretaries are rarely able to provide advice that will move the case forward. It is not appropriate for the assigned Judge, through staff or directly, to tell you what to do, what kind of motion to file, what objection to raise, etc. If you find yourself considering such a call, I encourage you instead to reach out and touch some experienced practitioners and brainstorm for ideas. I am certain that their suggestions will be more helpful than those of secretaries at our offices. 

Imagine yourself in the converse situation. You find yourself at a motion hearing, status conference, or trial. Counsel opposite argues "judge, I didn't know what to do, but your secretary told me filing this motion would solve this situation." Or worse (yes, this actually happened) "judge, your secretary said if I asked for this relief, you would grant it; I don't see why we need a hearing." As opposing counsel on that argument, are you feeling like there is a level playing field? Do you feel like you got a fair shake when there is at least a perception that the other side is getting advice from the judge?

My final answer on Friday? Either supply the information as requested or file an objection. Simple rule of the practice of law, when all else fails, make a record. If the objection route is the one you elect, request a hearing. Under our rules, make that request in the "objection" or, if you prefer make it a "motion for reconsideration" of the judges request. Make the "exceptional circumstances" for this hearing self-apparent in the objection/motion. When I hear from counsel that are upset that there was no hearing on a motion, I often find that the motion either does not ask for a hearing or does too little to explain that there are "exceptional circumstances" that necessitate a hearing. This does not mean write a treatise. A few sentences will usually suffice to explain why this is "out of the ordinary." this could be "in my statewide practice, I have never had such a request for information on a motion like this. I fear untoward consequences for my client and others similarly situated. Conversations with other counsel has suggested this is a situation of 'first impression.' As this appears to be unique and with broad potential implications, the undersigned believes exceptional circumstances support a hearing on this objection."

Of course, ultimately, the recourse might be a writ filed in the District Court of Appeal. This is no ones' choice. It is time consuming, expensive, and lots of work. I would suggest that one not take this route until the "objection" route described above has been tried. This is in the same vein as not filing an appeal until a motion for rehearing has failed. The "objection" or rehearing route is cheaper, faster, and may provide insight for the judge or litigants that will move the issue forward.

I often hear criticism that the process moves too fast. While that could be good news, as a complaint it is troublesome. Speedy trial is virtuous as people need their concerns addressed (which is why they brought them to us to begin with), but trial without appropriate preparation can be a due process issue. More on this in later posts.

David Langham

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