Sunday, December 13, 2015

Read the Order

I ran across a situation some months back. It was described to me as a "series of unfortunate mistakes;" at the end of the day, however, there was really just one cause for the situation. Unfortunately, it is a cause we see over and over. Fortunately, it is really easy to prevent. So, it makes sense to review a couple of similar situations that can all be avoided with the same easy advice, read the order.

There is a hearing scheduled. A notice and order are issued by the assigned judge, and it specifies how the case will proceed. For whatever reason, the judge specified that a live pretrial hearing would be necessary (it says so in the order/notice). On the day before the pretrial, one attorney files a partial pretrial compliance questionnaire. The claimant's attorney appears for the pretrial as noticed, but other attorneys do not. 

When contacted, they claim they did not know of the live pretrial. They explain that they "just assumed" the filing of the compliance questionnaire was all that was required. They sheepishly admit they "should have read the order," and ask for an accommodation in a rescheduled pretrial. Delay and wasted time result. 

An attorney contacts the assigned judge. Funds have been disbursed from a trust account to the injured worker and the child support depository and the attorney for fees and costs. The attorney is upset because the client has contacted the attorney because the net received does not match the amount that the judge's order says will be the net. 

There is no math error. The attorney calculated the amount of child support that would be withheld from the settlement. To do so, the attorney took the gross settlement, deducted the settlement fees and costs, and then deducted the amount of an ex parte fee which the injured worker would also pay. 

When the judge did the math, the judge took the gross settlement, deducted the settlement fees and costs, and that was the "net settlement." In the judge's perspective, the ex parte fee the claimant would pay was not part of the settlement. The judge therefore ordered that 50% of the resulting "net" be paid to the child support depository. This left less funds for the claimant, out of which the ex parte fee was to be paid. 

The result was an angry client. The amount ordered to be paid to the support depository was not paid to the depository. There were two perspectives on this issue. But it is the judge's job to make decisions. The attorney did not read the order. The attorney made assumptions instead, and disbursed funds based on that assumption. 

The result places the attorney in a difficult situation, with the client, with the bar and with the judge. Will the client bring back money that should have gone to the child support depository, so that the situation can be fixed? At a minimum, if the claimant does, there will be paperwork and checks and time to fix the mistake. 

An attorney files a verified motion for attorney's fees and costs in a case. The fee is based on a final merits order in the attorney's favor months before. This is not uncommon. Claims for benefits are prosecuted, orders are entered, and the fee and cost issues are addressed later. 

The verified motion spurs a responsive pleading. The main defense is that the final merits order says that it adjudicates all issues then pending. The order says that any issues not addressed therein are "dismissed with prejudice." That language is not uncommon. 

However, it is also common for merits orders to also include "claimant is entitled to fees and taxable costs for the obtention of these benefits. Jurisdiction is reserved for determination of the appropriate amount of fees and costs." This final merits order did not include this reservation of jurisdiction. An error? In all likelihood a simple typographical error. Will mistakes happen? Absolutely. Certainly, the judge should have caught the mistake and included this reservation in the order. But, the attorney should have read the order when it was received. 

The result? Investment of time and effort in addressing whether the Judge now has jurisdiction to determine fee amount. Win or lose, that is time and effort that would not have been required if the order had been read when received. The error is arguably much easier to fix if brought in a motion for clarification before the trial order becomes final.

Sometimes errors can be corrected when they are noticed, regardless of whether months have passed. But as a general rule, the best time to correct a mistake is early. If you get a notice of mediation or final hearing, the best time to get it rescheduled is right then, not two days before the scheduled event. 

The best defense to mistakes, errors, and conflicts is to read the notice or order. Not just the result, not just the date of the hearing, read the order, the whole order. This is a job for the attorney, not the paralegal or secretary. Interpretation may be required. The attorney should read the order. Then the attorney should think immediately about whether there has been an error and if so how best to correct it quickly. 

How do you fix an error, try a Motion (60Q6.115(1)), specifically a motion for rehearing (60Q6.122). Outline the error, propose a correction (or suggest several that are acceptable to you). There will be disagreements and disputes. Unlike wine, they rarely improve left in a cool, damp place to age. They improve when they are discussed. The earlier the better. To find issues like these, the answer is fairly easy, read the order. 

No comments:

Post a Comment