Yesterday I was reviewing some court transcripts. It’s a complicated matter, but only because of the background surrounding it, which involves approximately 19 civil lawsuits over the course of twenty years in state court, a couple bankruptcies, a federal case, a RICO claim, an airport, and a riding lawnmower being used as proof of official misconduct. I came across this matter in reviewing things for another case, and it grabbed my attention. I spent the weekend going through the information and case files, gripped by decades of litigation and backbiting in a small town.
One part of it stood out to me though, and it’s a perfect example of how even a minor detail can really fuck us over in this profession. First year law students, practicing attorneys, and everyone else, sit the fuck up, turn off Spotify, stop texting, and pay attention: Check your local rules and make sure your documents comply. In looking through this whole case, the one thing that made me take notice was, if the motion had been properly noticed, the last 12 years of litigation would have been completely unnecessary.
The whole matter would have been resolved with one hearing, one check, and one payment.
A rough rundown is as follows: there was a judicial sale of some high value property pending. The attorney who was representing the owner tendered a check to the judicial officer that was managing the sale. The attorney then filed a motion to enjoin the sale. However, he forgot to notice the motion and hearing time, the date, or even appear for the hearing at all, assuming that it was nothing more than a routine procedure that would be granted given that the money had been paid in.
Unfortunately, it wasn’t a routine matter. Five minutes before the property went to sale, the court held a hearing. The attorney for the debtor wasn’t present. The attorney for the creditor was. In one sentence, the court took note that the motion wasn’t properly noticed and was procedurally flawed, and dismissed it before ordering the sale to go forward. The client’s payment was approximately $5,000 short of being complete, and the court simply wasn’t inclined to put the sale, which had been stalled for years, on hold simply on the grounds of an improperly noticed motion. As a result of this, years of litigation regarding this property was kicked off.
As I’m reading through the record and making my notes, one thing stands out to me: an ounce of prevention and a few extra minutes checking the local procedure would have saved what is now thousands upon thousands of dollars of litigation costs. Really, no matter what history went on before, this case, and everything in it, turns on that one, brief hearing on the day of that sale. Had the motion been properly noticed, or had counsel been present to reassure the court that his clients were ready to immediately pay the remainder of the funds, the whole matter could have bee resolved 12 years ago with one check and a fare-thee-well. Instead, though, the attorney was rushed, didn’t want to make the drive in for what he believed would be a routine matter of the court enjoining the sale, and lost a lot for his clients as a result.
It happens to the best of us.
For instance, I once titled a “Petition to Open” as a “Petition to Strike” and spent the next month and a half fighting with opposing counsel through briefs on the issue of whether or not the court could treat it as a Petition to Open. That was the error. It cost me a lot of time to fight that, time which I couldn’t bill back to the client because it was, truly, my fuck up. Luckily, that whole matter became moot before anything else could happen, but if it hadn’t I ran a very real risk of a malpractice claim. Why? Because I was rushed to get it filed and hadn’t bothered making sure the titling was correct. Literally adding three words to the title of the document would have changed the whole thing around.
On a side note, the lawyer that challenged it and I are no longer speaking.
So, what can you do to avoid this sort of issue in your practice? Well, know your fucking procedure. I sincerely believe law schools need to teach a mandatory course on state and local procedure to complement Civ Pro. Of all the things I ding other attorneys on before the court, the most common thing is a failure of that attorney to review our local court rules before filing. I always give them leave to amend, because despite being a prick I’m not that big of a prick, but it makes them look bad. Every court has its local rules online, and, as the attorney I talked about above found out, a failure to follow those rules can be fatal.
File early. If your deadline is the 20th, you want to be ready to file on the 19th. I know some people disdain this practice, especially in this age of E-Filing, but in my opinion if you’re filing with minutes to spare you’re cutting it too close for comfort. An early filing means you have time to amend the filings to fix any errors.
Proof the fuck out of your work. Every lawyer has labored over something, revised the hell out of it, then filed it and noticed one or two glaring typos. Most of the time you can let them go, but sometimes…sometimes it’s substantive stuff. You should draft, revise, set aside, then come back the day before you file to review and revise again. Then you should review and revise before you file. Then you should review and revise after you file, because you filed early, remember? You have time to amend.
Show up for court. I don’t care how routine something is, you show up for court. A client may bitch about you attending every hearing even if its just to state that you agree with opposing counsel’s representations to the court of an agreement you reached. Fuck’em. Would you rather not show up and have opposing counsel take advantage of your absence, or have the court angry as a result? Things happen in court all the time, you need to be there, and not your associate who doesn’t know jack shit about the case.
When you don’t do this shit, there’s a term for what you become: a bad lawyer. There’s another term for what you become, too: a walking malpractice action.