The following posting is made with permission from the State Bar of Wisconsin who originally printed it as an article with the same name included in Young Lawyer Division News, State Bar of Wisconsin, January 2014, Vol. No. 17, Issue No. 1:
A recent article on Above The Law (AboveTheLaw.com) entitled, “Always Follow The Rules” discusses a 2011 Indiana Court of Appeals decision that, in my mind, nicely sets the stage for a discussion about professionalism and professional courtesy.
The case discussed was Booher v. Sheeram, LLC, 937 N.E.2d 392 (Indiana Ct. App., 2011), and the important facts are as follows: Defendant moved for summary judgment. Plaintiffs timely requested and received two extensions for their response to the motion. Fifteen days before the response was due and the day before Plaintiffs’ attorney was to have a major surgery, which would cause counsel to be in the hospital for two days and away from work for an additional two weeks, Plaintiffs’ expert contacted Plaintiffs’ counsel and explained he needed extra time to complete his report because he was having difficulty obtaining a necessary document and was scheduled to be out of the country for a ten day period beginning in five days. Four days later, Plaintiffs’ attorney’s legal assistant contacted Defendant’s attorney and sought and received a three-week extension. However, Plaintiffs never filed a formal request for an extension with the court—they never sought the court’s blessing on the extension upon which the parties agreed. Prior to the agreed filing date, Plaintiffs filed their response materials and less than a month later Plaintiffs filed some supplemental materials. Six days later—on Christmas Eve no less—Defendant filed a motion to strike the response and supplemental materials because a formal extension was never filed with the court even though the Defendant “readily admits that if Plaintiffs had sought an extension of time… Defendant would not have objected to such a motion…”
The trial court granted the motion to strike without a hearing. The Court of Appeals stated, “Pursuant to the bright line rule set forth [by the Indiana Supreme Court], the trial court was without discretion to accept the late-filed documents.” The Court continued, “[o]ur proverbial hands are tied, however, inasmuch as our Supreme Court has made it clear that the trial court simply had no discretion to accept the untimely filed documents, regardless of circumstances. Therefore, we are compelled to affirm the trial court’s decision to strike those documents.”
In my opinion the trial court got it wrong for a number of reasons. The Defendant informally granting an extension to the Plaintiff should have estopped the Defendant from objecting to the late filing at all. In fact, the court should have imposed nominal sanctions for even filing the motion to strike. There has to be exceptions to the bright line rule discussed in the case. What if Plaintiffs’ attorney had not filed the materials because Defendant murdered Plaintiffs’ counsel on the courthouse steps? “Foolish consistency is the hobgoblin of little minds.” Further, as much as lawyers are trained to pretend like it does not happen, judges often ignore the law when justice requires it. Judicial power inherently creates the ability to nullify the law and judges are called upon to both enforce the law and administer justice. One way or another, there was a way to do the right thing.
The Court of Appeals’ decision is marginally better than the trial court’s decision because it at least appears to be calling on the Supreme Court to change the bright line rule; however, in my opinion, they are simply passing the buck.
The real issue I want to address is not the court’s decision on the motion to strike; it is the Defendant’s attorney’s decision to even file such a motion. In the comments to the Above the Law article there was a debate about whether the Defendant’s lawyer should have filed the motion. Someone, presumably a lawyer, claimed it borders on malpractice not to file the motion. Hardly. In my experience, not filing the motion would have been the better path for the client. It is only hindsight that provides an argument otherwise, which then raises the question if the end justifies the means. However, it is amazing that the motion was granted. The result I would have expected would be for the court to deny the motion and be annoyed with the attorney and party that filed it. The reason for this is simple. This motion goes against normally practiced professional courtesy.
Early in my career one of my mentors told me something to the effect of, “Nothing irritates me more than when I call another lawyer for an extension and he or she tells me they have to go to their client first.” Lawyers should have enough control of their clients to be able to grant reasonable extensions of time if it will not prejudice their client’s position in the case. This is not simply my opinion. Google professionalism and professional courtesy and you will no doubt find canons of professionalism from state and local bar associations across the country that state substantially the same thing. This is why the Booher decision is so upsetting. It endorses conduct most professionals would consider unprofessional.
I hope there are still lawyers in Indiana with integrity to choose not to file these types of motions. That’s my argument. What’s yours?
© January 2014 Brandon J. Evans