Monday, August 3, 2015

Half the Job is Showing Up

Recently, The Florida Bar News reported on a lawyer that failed to show up at a hearing. It was not a good idea. The Supreme Court suspended the lawyer from practicing law for ten days after that, and administered a public reprimand.

The attorney apparently assumed that filing a motion for continuance meant that the hearing would not proceed. As a young lawyer I once presumed that filing a motion for protective order would keep a deposition from occurring until I could get a hearing. Rapidly, we learn that assumptions and presumptions can be mistaken. I found this article illuminating for a couple of reasons.

First, the paper notes that the the attorney "did not indicate in his motion that the state agreed with his motion." That is probably a bad idea in any context. The Workers' Compensation Rules of Procedure are clear on the "good faith" requirement for motions. See 60Q6.115(2). Recitation of the other side's position on the motion, or of the efforts expended to attempt to learn their position is mandatory in our system and advisable in all systems.

Second, the attorney "failed to set a time to hear his motion." In the workers' compensation practice, you need not worry about setting a hearing in most instances. The judge is going to decide the motion without a hearing most of the time. See 60Q6.115(4). When this becomes a concern though is when the deadline or the event (a hearing) is approaching and there has not been a ruling. 

Whose problem is that? How do you address it? It may seem to be the moving party's problem. but it may be something that could cause  harm to either side. 

Think of the deposition that you cannot attend. You move for a protective order or to quash. Without an order, the other side may proceed with the deposition, trying to protect their record. There is potential for harm to both sides. A deposition you did not attend might later be in evidence, or there might be a continuance and the other side might have the expense of conducting it again. To solve the dispute, how about a joint call to the Judge's staff to remind of the issue and to ask for a hearing?

Third, in this instance, "the judge traveled from another county to preside," as did the state attorney, and "the defendant was transferred from jail to attend." These are inconveniences. And as important in a profession like the law, these are discourtesies. Time is wasted by a judge, opposing counsel, parties, and in many proceedings perhaps witnesses. In today's world of vast communication alternatives like email, cell phones and voice mail, there is just no reason you cannot make an effort to keep people from wasting their time. 

In this context, it is appropriate to remind ourselves that nature can conspire against us all sometimes. I sit this morning and wonder what the effects we will all suffer from this weekend's unusual rainfall in the Tampa area. In Florida, it can be a hurricane sometimes, but weather can work against us even when the storm is not named. It is possible that attorneys went home Friday with every expectation of a hearing this Monday morning. As the weather occurred, how could they assess the possible effects. The OJCC has a published weather closure policy.

How do we prepare for weather emergencies? This is an ideal time of year to focus on that question. We are in the active portion of the Atlantic cyclone season. In May, I compiled some resources in Its that Time of Year Again. It is helpful to review those periodically. Are you as prepared as you can be?

Simply put, you can find out from the news if the OJCC will close an office due to emergency. You can communicate with opposing counsel and witnesses, and clients. Perhaps the communication will be unsuccessful, that you cannot control, but in today's world you can text them, email them, call their cell. There are those among us who are harder to contact, but those people can be instructed in advance to contact us in the event of an urgency.

An intriguing element of the Bar news story was the attorney's argument that discipline was "not justified because the client ultimately suffered no harm." However, the referee and the Court concluded that nevertheless "the attorney showed a lack of diligence in not properly seeking a continuance." In short, discourtesy and failure to communicate is not excusable just because, in the end, there is no harm to your client.  

The Court concluded that the "misconduct was relatively minor," but was "harmful to the administration of justice" and "cannot be tolerated by an officer of the court."

When you have a hearing, show up. If you cannot show up, make arrangements in advance for someone to cover your absence or to appear by telephone or to move the hearing. The same applies equally to mediation, discovery, etc. Will it always work? The short answer is no, we will have miscommunication, missed calls, etc. But we owe it to one another to try to communicate. Something unexpected? Send and email and a text and leave a voice mail. Make the appropriate efforts. 

Need an order? Do more than file. Follow-up, communicate with other counsel in the case. Ask for a hearing when time is short. Keep everyone in the loop. It is about making the effort. Once everyone shows up to a hearing that cannot proceed, it is too late. 

Take from the Court's ruling that the harm to your client is not necessarily the "gold standard" test. The Court here considered whether the failure affected "the administration of justice" and that is a far broader questions. 

It never hurts to say you are sorry. If you make an error, fail to show, forget an appointment, etc., make it a point to graciously, sincerely, and rapidly apologize to all involved. We all make mistakes. Life happens to us all sometimes. Admit it, own it, and apologize for it. It is amazing what a sincere apology can do to smooth over our mistakes and to build professional relationships in which we will be involved over our careers. 

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