Late filing costs BigLaw client BigBucks.

It’s the type of problem that keeps litigators up and night and gives them ulcers: missing a deadline. Typically, you worry whether you calculated the number of days correctly or remembered to add or omit weekends. But I doubt most litigators would ever fear being one minute late, even in their wildest nightmares.

The story actually starts on a high note. Toshiba, the big client, had just obtained a judgment and was given 14 days – until Oct. 10 – to file a motion for attorney’s fees. The rest of the story is best explained by the Judge’s order:

Here, [Toshiba’s] purported reason for its delay is that its courier was caught in traffic at 3:30 in the afternoon in Santa Ana, California. Mr. Mersel, attorney for [Toshiba], asserts that he waited until 3:14 p.m. on the last day of the filing period to deliver the motion to Morrison & Foerster’s regular courier service. Mr. Mersel asserts that although he was aware that the filing deadline was 4:00 p.m., he had “never had a problem with getting papers filed by 4:00 p.m. when delivering them to the attorney service” forty-five minutes in advance. The courier, Mr. Moskus, swiftly responded to Mr. Mersel’s request, leaving on his motorcycle for the courthouse at approximately 3:30 p.m. Unfortunately, Mr. Moskus encountered “unusually heavy traffic” and had to “wait at the railroad crossing on Grand Avenue for a long train to pass.” Consequently, Mr. Moskus arrived at the Courthouse after the office had closed and Mr. Mersel was unable to file the motion until the following day, on October 11, 2007.

These circumstances, however regrettable, do not meet the standard for “excusable neglect.” Although the delay was not lengthy and it does not appear that [defendant] was prejudiced by it, the reason for the delay was entirely within [Toshiba’s] control and [Toshiba] has not offered a good faith reason for the delay.

Concluded the judge: “[T]he entirely foreseeable obstacle of traffic in Southern California in the late afternoon . . . cannot justify an enlargement of time.”

Early in my career I learned to add a fudge factor to deadlines. I even took to the habit of telling certain partners with a penchant for procrastination that the filing deadline was one day before the actual deadline. Its a habit that most young lawyers should adopt. You’ll thank yourself on that morning when that partner walks in with a brief that has so much red ink you thought Jackson Pollack edited it.

What Can a Lawyer’s Verbal Attack on a Judge Teach Us About Mediation?

A Daily Business Review article explores the case of a Florida criminal defense attorney who is facing Florida Bar ethics charges for critical comments he posted on his blog about a controversial Broward, Fla., judge.

What caused the commotion? Well, I’m not a criminal attorney, but it appears that this centers around Judge Aleman’s attempt to force felony criminal suspects to declare ready for trial within 1-2 weeks of arraignment or seek a continuance, which apparently forfeits the defendant’s constitutional right to a “speedy trial.” This policy also apparently violates Florida’s Rules of Criminal Procedure, which allow a defendant a reasonable time to prepare.

After Sean Conway had one of his defendants placed in this unenviable position, he posted on his blog about the situation. The post, filled with grammatical errors and “txt msg” abbreviations, referred to the Court as “Evil Unfair Witch”, branded the new policy “illegal,” called the Judge “mentally ill” and “unfit for her position” and stated that he (Conway) would not call the Judge “Your Honor” because “there’s nothing honorable about that malcontent.” Conway is now under threat of Bar discipline for violating the ethical requirement that lawyers refrain from making false or reckless statement about the integrity or qualifications of a judge. [As an aside, the judge is also under investigation for an unrelated matter].

Putting aside for the moment the constitutional arguments over free speech (which are explored in the original article), I think this incident can be used to illustrate some (in)effective negotiation/mediation tactics. It would appear that Conway had a valid legal argument that Judge Aleman’s policy was illegal, unethical and possibly unconstitutional. But by resorting to such a crass and classless ad hominem attack, he undermined his argument.

All too often, I see litigants sit down across the mediation table and launch right into the personal verbal assaults.

“He’s a liar”
“She’s a drunk”
“What would you know, you went to [insert name of arch rival university here]!

And this is from the lawyers. Well, maybe not that ridiculous, but I’ve been involved in witness to shouting matches between highly educated, allegedly professional attorneys. More often than not, both sides have valid, legal arguments as to why they may be legally entitled to assert their claim or defense. But the other side doesn’t see them, or care, because they are too busy defending themselves from the personal attacks.

There’s an old Southern saying, “You catch more flies with honey than vinegar.” Took me a long time to realize that, but it works. Had Conway blogged about the alleged illegality of Judge Aleman’s policy in a less invective manner, or drafted a firm, persuasive letter to the Chief Judge or whatever organization overseas judicial ethics, rather than call the judge an evil nutcase, we would likely have never heard of this incident, or if it came to light, hailed Conway as a champion of constitutional rights. But now, if he is remembered, we will simply recall him as that criminal lawyer who resorted to name calling when things didn’t go his way.

The next time you are at the mediation table, put the venom aside, take the proverbial chill pill, and think of a neutral way in which to convey the fact that you think your opponent’s argument is horse dung.

Introducing the “I’m too smart to do something that stupid” Defense.

Take two.

Last week, prominent Mississippi trial lawyer Dickie Scruggs was indicted along with some of his colleagues in a hair-brained scheme to bribe a state court judge with $40,000 in order to receive a favorable distribution of a $26 million award of attorneys fees. When asked about the case, prominent Mississippi pulp writer John Grisham had the following to say:

My initial reaction was one of surprise. I know Dickie Scruggs. This doesn’t sound like the Dickie Scruggs that I know. I was really shocked by the news. When you know Dickie and how successful he has been you could not believe he would be involved in such a boneheaded bribery scam that is not in the least bit sophisticated.

And thus, the “I’m too smart to do something that stupid” defense was born. I have to say, it has an air of credibility to it, unlike, say, the famous “Twinkie Defense.“

18 Year Old Passes Bar; This Blogger Feels Old.

The WSJ Law Blog reports that 18 year old Kathleen Holtz passed the California bar exam on her first attempt (a feat not accomplished by the former Dean of Stanford Law!). This prodigy entered college at 10, UCLA Law at 15 and got a spot on the Law Review, and this past month she rode shotgun on a two week trial.

I feel old.

Mediation Saves UK Businesses £1 Billion (while costing only £8 million!)

The UK non-profit Centre for Effective Dispute Resolution reports that

By achieving earlier resolution of cases that would otherwise have proceeded through litigation, the commercial mediation profession this year will save business in excess of £1 billion a year in wasted management time, damaged relationships, lost productivity and legal fees.

The study also yielded some interesting findings, including the fact that “The mediation fees of the ‘top’ mediators are now average £3,120. 13 per cent of experienced mediators, each undertaking 50-100 cases a year, are earning £282,000 or more per year (in 2005 this figure was £177,000).

Cheerio, mates. I’m packing my bags for Jolly Old England….

The Wall Street Journal Suggests Mediation as Alternative in Securities Cases

I came across an interesting article today about the use of mediation in securities disputes. Oddly, it was no more than 2 hours after having lunch with a local securities lawyer who suggested I get certified as an NASD arbitrator.

I found this comment interesting and a little disturbing:

Lawyer Steven Caruso, past president of the Public Investors Arbitration Bar Association, a group of attorneys who represent investors, says a potential conflict of interest exists for mediators: “They want to do a fair job, but they’re going to get more business from the brokerage firm than the claimants’ attorneys.” That said, he and other investors’ attorneys say they know mediators that both they and defense lawyers trust.

So, which is Steve-o? Are we biased because we want repeat business or can you trust us?

The Pants “Judge” is About to Lose his Job

The Washington Post is reporting that everyone’s favorite judge (OK, he’s my favorite judge because the mere mention of his name drives web traffic), Roy Pearson is set to lose his job as an ALJ. Sources tell the Post that

A city commission voted yesterday against reappointing Pearson to the bench of the Office of Administrative Hearings, which hears cases involving various D.C. boards and agencies. Pearson, who was up for a 10-year term, had tried to hold on to the job. The commission’s discussions are not public. Sources familiar with the deliberations said the panel hasn’t drafted a letter formally notifying Pearson of its decision. Until that is done, the sources said, the decision is not final. The letter could be sent early next week, according to the sources, who spoke on the condition of anonymity because of the sensitive nature of the case.

Karma can be harsh.

Georgia Bar ADR Conference – Early Case Assessment and Managing the Tension Between In-House and Outside Counsel

On Friday I attended the 14th Annual ADR Institute and Neutrals Conference at the State Bar of Georgia. Overall, I have to say I was disappointed with the event. I probably should have set my expectations lower, but the roster of participants included several prominent local ADR practitioners, so I expected some good, practical knowledge that I could apply to my practice. What I got was what should be basic common knowledge for any mediator (or as so many were so fond of saying, “Conflict Manager,”), and surprisingly detailed war stories.

Two panels (late in the day, of course) redeemed my faith and are worth discussing here. The first one – Early Case Assessment and Managing the Tension Between In-House and Outside Counsel – was a bit of a surprise to me. Not because I expected it to be a bad panel, but because I guess I didn’t understand the description of the topic. What I expected to be a discussion of how a mediator or neutral could deal with the inherent tension between inside and outside during a mediation was actually an excellent discussion about how lawyers, most importantly, in-house counsel, could employ ADR processes like early case evaluation and pre-suit mediation to help alleviate some of the inherent conflict and tension between the outside counsel who need to bill hours and in-house counsel who need to keep costs down.

It was very encouraging to hear the heads of the Litigation Departments of two billion dollar companies (Georgia-Pacific and The Home Depot) discuss using pre-suit mediation or early-case mediation to help resolve disputes. I have several friends who represent The Home Depot and they have told me numerous times that The Home Depot is fully committed to using mediation as a means of clearing their balance sheets of a significant portion of their litigation docket. I am not familiar with Georgia Pacific’s use of ADR to help settle cases, but their representative echoed the sentiments of Mr. Snyder from The Home Depot. And according to Mr. Snyder, he is preaching his methods to his cohorts in the “big box” retail sector.

It was even more encouraging to hear two prominent business litigators from two of Atlanta’s finest silk stocking firms agree with their in-house counter-parts and discuss everything from early case evaluation to mediation to alternative fee structures. Given what I heard, I would expect some very innovative systems and processes to come from the partnerships of these dynamic in-house and outside lawyers. Unfortunately for me, as a practical matter, I was unable to fight my way through the swarm of my fellow mediators to meet and greet any of the panel.

I’ll discuss the second panel, “Mind Games: The Psychology of Negotiation and Influence,” given by Vanderbilt Law Professor Chris Guthrie, tomorrow.

God Files an Answer; Asserts Lack of Jurisdiction

I guess I was wrong.  God could find some lawyers.

The ABAJournal.com reports that the Clerk of the Court in Douglas County, Nebraska has actually received TWO answers to loopy State Senator Ernie Chambers’s earlier lawsuit against God. “No contact information was on the filing, although it lists St. Michael the Archangel as a witness. Several local lawyers denied that they wrote the response.”

It looks like the Pants Judge won in the end…

While everyone’s favorite jurist Roy Pearson failed to persuade anyone that losing his pants was worth $54 million in damages, it appears he may just have the last sinister laugh. The AP reports that

The owners of a dry cleaner who were sued for $54 million over a missing pair of pants have closed and sold the shop involved in the dispute, their attorney said Wednesday.

Let’s hope karma comes back to bite this jackass in those ugly maroon pants when the government agency for which he works “reviews” his current status.