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
