Mastering Motions to Compel

Celia C. Elwell, the Researching Paralegal, recently pointed to an excellent article in the ABA Journal entitled “6 Keys to Acing Discovery.” The article focuses on preparing for and arguing motions to compel. Post author, Katherine A. Hopkins, cites the following as keys to success:

  1. Avoid canned briefs
  2. Research the court procedures
  3. Research the judge hearing your motion
  4. Research opposing counsel
  5. Make the judge’s life easy
  6. Finally, don’t be a jerk

Read the full article here.

Your first reaction may be: this sounds like a lot of work for a “simple” motion to compel. Perhaps it is. On the other hand, research is something you only need to do once. If you’re in a firm or have a network of fellow practitioners, it should be easy to make a few phone calls about an unfamiliar judge or opposing counsel.

Knowing the court procedures? You better know the court procedures! If it’s been a while or you are new to a particular judicial district in Oregon, start with the OJD Rules Center. Scroll the page to find UTCRs, SLRs, and “other rules,” including the Oregon Rules of Civil Procedure. If you are a Multnomah County practitioner, the new updated 2018 Attorney Reference Manual is now available on the Multnomah Bar Association website. Get it toot sweet!

I can heartily vouch for the tips about making the judge’s life easy and not being a jerk. No one likes the latter. Don’t take the bait if the other side is contentious. Keep your cool and your reputation intact.

As for the judge, put yourself in his/her position. A straightforward, well-organized motion with clearly marked exhibits is a great start. Your argument should be the same.

All Rights Reserved 2018 Beverly Michaelis

How to Treat Bad Clients

When you saw this post title, how did you react? Was your first thought: “Kick ’em to the curb” or “I wonder where this is going?” If it was the former, don’t feel bad – it’s my knee-jerk reaction too.

When we hear the words “bad client,” we instinctively cringe. It conjures up past experiences we would rather not relive. Frankly, nothing could be more unpleasant. So what should we do?

Remedies for bad clients

Want to weed out or eliminate bad clients? Nothing beats:

  1. Screening at intake;
  2. Controlling expectations; and
  3. Knowing when to say no.

Trouble is, most of us know these lessons.  So …

What if a bad client squeezes by?

If there is an irremediable breakdown in the lawyer-client relationship and withdrawal is viable, do it. At this stage, it isn’t going to get better. Yet, some lawyers refuse to do so.

Why would anyone hold on to a client who belittled and berated them? Denied that telephone conversations or email exchanges occurred? Refused to produce materials requested in discovery? Insisted the lawyer use unethical or illegal tactics? (All actual events that have happened to lawyers I know.)

Money is generally the explanation. The lawyer can’t afford to forego the fee (or jeopardize her job). There are other reasons too, like fear and intimidation.

I hope you never experience any of this. If you do, I hope you are strong enough to get out. If you want to talk it over with someone, consider calling one of the confidential attorney counselors at the Oregon Attorney Assistance Program (OAAP).

Is there another approach?

I was motivated to revisit this topic by blogger Celia Elwell. In a recent post, she took on lawyers and legal staff who retaliate against ill-tempered clients by putting the client’s work at the bottom of the stack. Since I’ve witnessed this too, I wanted to share this point made by Ms. Elwell:

Most people, as a rule, do not call an attorney’s office because they are having a good day. Before they became our clients, they realized they had a problem, tried to deal with it, were unsuccessful, stressed, and lost sleep. In short, we are not seeing them at their best.

Take good notes when your clients vent, rant, or repeat themselves. Because they are upset, they may be mistaken or confused. Let the client know that you are listening to them. Interrupt only when you need them to repeat something to make sure you get it right. Document the clients’ concerns, and tell your attorney they called and why.

While her remarks are directed toward staff, they are good reminders for us all.

If you didn’t spot it, notice I suggested above that withdrawal made sense if (a) it was viable and (b) there was an irremediable breakdown in the lawyer-client relationship.

What if you aren’t there yet? This is when Ms. Elwell’s advice comes in handy.

Do not under any circumstances intentionally retaliate by putting the client’s work at the bottom of the stack. At the least, it is unprofessional. It will also likely result in a bar complaint and/or legal malpractice claim. Instead, take the high ground:

  • Try to diagnose what went wrong. Is the client mad at you or someone else? Is the client mistaken or confused? Is this about money? How stressed is the client? Consider scheduling an in-person meeting to air out client concerns.
  • Go out of your way to be courteous and considerate. Instruct staff to do the same.
  • Do high quality work in a timely manner.

It’s easy to be resentful and decide that we’re going to give what we get. But if you go out of your way to appease the upset client, you remove all rational grounds for disputes, complaints, and claims. It’s better to remain professional, even if the “bad” client never appreciates it.

All Rights Reserved 2018 Beverly Michaelis

Postscript

For more tips on improving client relationships, check out this CLE:
7 Steps to Building Better Client Relationships.

 

Failure to Check Spam Folder Leads to Missed Deadline

Court notices delivered via email are a known point of vulnerability for law firms: failure to timely check messages, accidental deletion of court notices, or haphazard review of spam folders.

Now The Researching Paralegal reports on the latest variation of this theme.

A trial court clerk in Florida served an order by email awarding a significant amount of attorney fees to the prevailing party (appellee).  The opponent/appellant claimed it did not receive the order, resulting in its failure to file an appeal.  What happened? The opponent/appellant’s email system automatically deleted the court’s email as spam.

The opponent/appellant asked the court to vacate the original order on the grounds of excusable neglect.  The trial court declined and Florida’s First District Court of Appeal affirmed. The Researching Paralegal cites these factors:

First, the review of the court clerk’s email logs confirmed that the email with the court’s order was served and received by the law firm’s server. Second, the law firm’s email configuration made it impossible to determine whether the firm’s server received the email. Third, the law firm’s former IT specialist’s advice against this configuration flaw was deliberately rejected by the law firm because its alternative cost more money.

The trial court concluded the law firm made a conscious decision to use a defective email configuration merely to save money, which was not “excusable neglect.”

Another nail in the coffin was testimony by the appellee’s attorney. His firm assigned a paralegal to check the court’s website every three weeks to safeguard that his firm would not miss any orders or deadlines.  The court held that the appellant had a duty to check the court’s electronic docket.

Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLCCase No. 1D15-5714, Fla: Dist. Court of Appeals, 1st Dist (2017).

What can we learn from Emerald Coast?

  1. Whitelist important email. Set your spam or junk email filters to allow receipt of messages from approved senders or domains. Include courts, administrative agencies, key clients, opposing counsel, and any other senders whose email you don’t want to miss.
  2. Review spam quarantine summaries daily. Aggressive spam filters will occasionally block senders and domains you have added to your whitelist if the filter finds content in the email to be possible spam.  Addresses and domains may also change, causing new notices to be marked as spam.
  3. Don’t forget to look at your junk mail folder, another place where legitimate messages can land.
  4. Check online court dockets. Weekly will work for most firms; others may need to login daily, depending on case volume.
  5. Listen to your IT staff.  Here, the IT specialist argued against automatic deletion of junk and spam messages and recommended hiring a third-party vendor to handle spam filtering.  He also suggested investing in an online backup system, another idea rejected by the law firm.  Following either of these recommendations may have prevented the firm from missing the deadline.

A few more takeaways

  • It should be clear, but just in case:  everyone needs a backup system. If you can’t afford the cost of an online subscription, buy an external hard drive on sale and use the backup utility built into your operating system.  For backup protocols and additional backup options, see How to Backup Your Computer from the Professional Liability Fund (Practice Management > Forms > Technology).
  • Can’t afford a third-party vendor for spam filtering or another IT task?  Understandable, but the work itself still needs to get done. This may mean you, your partner, or your staff.  Technology is a tool, not a substitute for human judgment.

There are some other interesting twists and turns in Emerald Coast.  For examplethe law firm also refused to join in on a motion for a case management conference – a step that would have likely revealed the existence of the attorney fee award.  Additionally, automatic deletion of spam wasn’t the only email configuration procedure that caused problems for this office.  If you have a few moments, read the full opinion here.

Beverly Michaelis – All Rights Reserved 2017