Monday, February 16, 2015

The Spirit of Conferring

I get a fair number of inquiries about "personally confer." There seems to be lingering doubt or confusion on this topic. The rules, since last November, have provided a definition for "personally confer."  The definition is in 6.102(12) and the requirement for it is in 6.115(2). 

60Q6.102 (12) “Personally conferred” means communications in person, by telephone, e-mail, text messaging, or some other communication mechanism that permits an immediate, contemporaneous response.

60Q6.115(2) Except for motions to dismiss for lack of prosecution, prior to filing any motion, the movant shall personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion. All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of record and shall state whether any party has an objection to the motion. (Emphasis added).

Essentially, Rule 6.115(2) requires communication prior to filing a motion, and 6.102 strives to clarify what conferring requires. 

Long ago, there was a cartoon called Calvin and Hobbs. It chronicled the adventures of a six year-old boy with a stunning imagination, which included interaction with what appeared to the rest of us as a stuffed toy tiger. In a pertinent example, Calvin is told to get into the bathtub, an instruction with which he strictly complies. Sitting in the dry tub, filthy, and fully-clothed, he narrates "I obey the letter of the law if not the spirit." The strip closes with Calvin's disappointment that his mother has figured it out and instructed him to put some water in the tub.

6.102(12) requires some form of contemporaneous communication. This can include texting, email, and facsimile. Each is capable of instantaneous receipt and immediate response. Some of the inquiries I get focus on these mechanics. In other words, an attorney has focused on "the letter of the law" like Calvin, but has ignored the spirit of the rule. Sending a text or fax, in itself, may not be any more effective than sitting fully-clothed in a bathtub. Despite compliance with the required mechanics, a judge may not find such text or fax sufficient.

One need only consider the purpose of the rule, to understand the use of these modalities. The goal of these two rules is communication. The communication should be interactive, that is the letter of the law. The content of the communication, the spirit, is as important if not more. Communication is a two-way street. Conferring is even more specific in this context. The purpose is a back-and-forth, interactive, communication.

The purpose, or spirit, is not lines in the sand, ultimatums, and threats. The point is not to forewarn the other parties that a motion will be filed. Regardless of the selected means of transmission from 6.102, the communication is not interactive if it is one-sided. The goal is to discuss the situation or disageement then existing between parties.

The goal is that this interactive communication will lead to greater understanding by all concerned. Through this greater understanding, through this interactive communication, it is hoped the parties can come to a clearer understanding of their actual dispute. Often such conferring leads attorneys to conclude that there is in fact no disagreement or misunderstanding after all. 

In the event there is an actual disagreement, the personal conferring should lead to a better understanding, a crystallization, of the essence of that disagreement. With full understanding of the disagreement, attorneys and parties may even reach agreement despite their disagreement. 

If the disagreement is ultimately brought to the judge for resolution, time is not wasted on issues about which all parties agree. Time is not wasted on issues that are irrelevant or tangential. The parties conferring has led, instead, to a crystal clear understanding of the essence of disagreement. The parties and the adjudicator can bring full focus to that issue or issues which really need determination.

Personally conferring in the motion procedure can lead to resolution, better understanding of disagreements, and efficiency for parties and the judge.

The same conferring can be extremely powerful prior to mediation of your case. This is another instance in which you know you will be receiving a limited allotment of time to discuss issues. Whenever time is limited, and it almost always is, use your time efficiently. That is, confer prior to mediation to better understand what the parties agree upon, and to crystallize areas of disagreement. It is the areas of disagreement upon which you want the mediator to focus. Do not distract the process of mediation or hearing from the relevant and imperative with long-winded discussion and distraction of the irrelevant and tangential.

At the end of the motion issue discussion, understand this. Complying with the letter of the law (Judge, I sent them a fax and told them I was filing a motion) does not satisfy the requirement that you must confer. Miriam Webster says that this means discuss. Discuss does not mean to send ultimatums. Discuss does not mean to belittle or demean. Discuss does not mean to threaten or even promise. Discuss means to have an interactive exchange of ideas and thoughts. 

No matter which of the 6.102 tools you elect to use, have a conversations. Have a discussion. Exchange ideas and thoughts. Seek agreement and better understanding of disagreement. Do not be fully-clothed stubbornly sitting in a bathtub in full compliance with the letter of the law, waiting for the judge to remind you of the spirit.  Engage in the process, discuss, exchange, learn. 

The spirit of the rule is important. Professionalism is contagious. 

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