Feigned Indignation

This is a follow up to my post of April 27, 2011, “Disingenuous Lawyers”: it is a small thing, but very telling to me as to whether I can trust a lawyer who pulls this trick.

The lawyer in question knew that I had a trip of over 600 miles to get back to town.

I had travelled to St. Louis, driving 11 hours, on Sunday. On Monday an order came in setting the hearing on an emergency motion for Tuesday.

I left for home after depositions on Monday, but energy flagged after six hours of driving back, and I checked in to a Holiday Inn Express.

Monday morning, an order arrived, setting a hearing for 3:00 p.m Tuesday for an emergency “‘ex parte” motion I had filed. Because of computer and human error, I did not learn of the order. I travelled the remaining 6 hours on Tuesday, blissfully unaware.

Still, I arrived home by 2:00 p.m., thinking my afternoon was clear, and commenced checking my e-mail. At 3:50 p.m. my staff calls to advise the judge is curious whether I am coming to the hearing! My trusty WRX gets me to the court house steps 11 minutes later. I arrive panting, in my orange shirt and jeans, sans tie.

My opponent was there, smiling, perky, and so solicitous. “These things happen.” she says. “However, my client has been greatly inconvenienced, so I will have to ask for $200 sanctions for my wasted time.”

Oh, really? This lawyer has my e-mail address, my cell phone number, my office phone no., and my home phone number, and she knows I am “connected” with iPhone, iPad, Laptop, and desktop.  She knows my staff is highly efficient and could, as happened when the judge called, reach me in seconds. In short, if she wants to know where I am and why I am late, she can get that information nearly instantly.

But, did she call to see where I was? Was she concerned I might have wrecked or had a break down? She did not. and was not. I think Dr. Seuss wrote a tale based on this concept. Horton would have called the Mazie Bird if he had her number.

What I realized later is this lawyer knew exactly what she was doing. She hoped that I had forgot the hearing (or in this case, didn’t know about it)? That way, even if the judge called me, and I got there, I would be late and frazzled, which I was.

Ideally, in her mind, I would still be an hour away, and she could appear unopposed.

No, she didn’t care about her client’s being inconvenienced, OR my being embarrassed. She wanted to be able to feign indignation, claim inconvenience, and if I was a “no show”, to frame the issues for the judge.

My emergency relief requested was simply something called a “constructive trust”. That is, that the parties be prohibited from selling or disposing of marital assets, something the other lawyer conceded her client had been doing. The dispute was how much was disposed of, and that wasn’t even to be heard that day.

So, here is the practice tip. What goes around comes around. There will be a day when YOU are the lawyer who is late for a hearing. SO, call the other lawyer’s office, inquire if he is ok, remind his staff he was to be at the hearing, and hope other lawyers will be considerate of you.

This is my policy; I have done it dozens of times.  I do not think it is disloyal to my client to treat the other side with common courtesy. Many lawyers disagree with me. I disagree with them.

This was not one of those days for me, and I shall ALWAYS remember it. And, if this client runs out of money, he will still have a lawyer. This case has my full attention, and if the
other side is in the wrong, I WILL prove it.

Tricks like this poison the atmosphere at mediation and are never worth the harm it does to the lawyers’ professional relationship, but I see it happen every day.

This post was written by Burton Hunter

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