Sunday, July 21, 2013

Following Orders

This question comes up periodically. Attorneys have been ordered to do something, with which they disagree. At some point in that process, they call me to complain that they do not know what to do next (or do not want to do what they have been ordered to do). Virtually without exception, the complaining attorney(s) are thoroughly convinced that the Judge is at best acting improperly, and often they describe it in much more graphic terms.

For the purpose of this discussion, we will understand that a Judge has entered an order that requires specific conduct. That might be that the parties will come to a mediation, present for a hearing, file a document such as a pretrial questionnaire, produce documents, or advise the judge of an occurrence or event, such as notifying the judge when a bankruptcy stay is lifted. In any of these various instances, the behavior the judge wishes has been ordered.  Entering orders and managing a docket is the judge’s job.

When confronted with an order, the parties have to do what the order says. That is what “order” means. If an attorney disagrees with an order, that is understandable. People can disagree with an order. That does not mean, however, that a party or attorney can elect of their own accord to disregard the order just because they disagree with it. Parties and their attorneys have an obligation to comply with orders from the judge. This is true when they agree with the order, but is just as true when they do not. The order is not a suggestion, request or idea, it is the law of the case. Attorneys must comply with orders.

If the attorney disagrees with the order, then the attorney needs to take appropriate action. Like what? Surprisingly, I reply to many questions with “60Q6.115(1).” The appropriate method to ask for any kind of relief is by motion. Calling the judge’s office to explain your difficulty with the order is not the appropriate course. Sending the judge a letter (or sending me a letter) seeking relief is not the appropriate course.

File a motion. It can be produced in the same time that it would take to compose a letter; there is no purpose for such a letter. The Motion need not necessarily be an expose of the situation from the inception of the claim. Keep it brief, but provide the requisite, relevant details succinctly. Describe the problem. Describe the outcome you seek. Cite authority that supports your outcome. Consult with opposing counsel and see how they feel about the motion. Describe their position accurately in the motion. Then file it. This is the appropriate course. The Judge may then agree or disagree with you.

Calling the judge’s office is not effective to obtain relief. Calling the Judge's staff to explain why you intend to, or did, refuse  to follow the order is not effective to obtain relief. Calling me will not help you to the relief you seek. I am happy to listen, commiserate, and discuss. I will even make a record of your call. But the order you seek needs to come from the assigned Judge. Therefore the motion seeking that outcome needs to be filed with that judge.

If you disagree with the Judge’s decision, the appropriate relief is to move for rehearing or file an appeal with the First District. That Court is the only authority that can change the assigned Judge’s decision. I cannot, I am not an appellate court. I hazard to guess that no attorney who has disagreed with a Federal or Circuit Judge’s decision has reacted by calling to ask to speak with the Federal or Circuit judge to explain why the Judge is wrong and should change their decision. 

I also suspect that no one has likewise called and asked for a status conference with such a judge for the opportunity to explain to the judge all of the issues and facts that she or he omitted from the motion and which the judge “needs to understand” to make a better decision. I also suspect that attorneys do not decide on their own to disobey Federal or Circuit judge decisions or decline to appear for hearings before them as ordered. You would not write a letter or try to schedule a status conference in Court, why would you do so with a compensation judge?

The First District is the body with the authority to change the decision made by the assigned Judge. Appeals may be time consuming and are potentially expensive. The Court may grant your relief despite your failure to appropriately seek relief from the JCC (motion), your failure to be explicit (detailed motion), your failure to cite any authority (sloppy), and your failure to seek rehearing by appropriate motion to the JCC after the appealed order. However, this is not where the odds lie, and it is not the way to bet.

The odds lie with filing a timely, detailed motion, citing appropriate authority, with the assigned judge. If you do not agree with an order, move for rehearing. If that does not work out, file an appeal of the order. If you choose instead to just disobey or ignore the order, the result may be sanctions or worse. When you choose to ignore or disobey a judge’s order, that is a choice you are making. If upsetting consequences flow from your choice, remember that was ultimately your decision. That you do not like the consequences of your own decision is ultimately not the judge's fault.

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