I should have gone to see the Judge

Oh man this has been a long day.

After I dropped the GirlChild off at school, I pulled into a parking space and got on my cell phone.

I wonder sometimes how we (and I mean that Universal WE) have gone from "attached to the wall phones," to "portable phones" to "can't get in the car and drive to the grocery store without my mobile phone." I doubt the GirlChild has any memory of a time when she couldn't call Baba on the telephone while in the car. I know the BoyChild won’t remember a time when Mom and Dad didn’t both have cell phones.

Anyway.

My office has a case which had an order which needed to be signed and filed ASAP.

We wanted some records to use at an upcoming trial. We served a notice to take deposition on the other side. The attorney on the other side filed an objection which was total bull shit. We had to have a hearing and the Judge overruled his motion and ruled we could take the depositions we wanted. We had to get the order filed ASAP because the people we'd served the notices with wanted proof the judge had ruled in our favor. The trial is set to begin in two weeks so time was of the essence. We didn't get the signed order back from the lawyer on the other side until late yesterday.

The judge is 2 hours and 43 minutes away according to MapQuest.Com. The courthouse where the order had to be filed, after it was signed by the judge, was an additional 58 minutes away. We talked about hiring someone to drive it to the judge and then drive it to the Courthouse for filing but there is a rule that only lawyers can present orders for judges to sign.

I desperately did not want to spend my day in the car. Sometimes Driving for Dollars AKA Windshield Time is fun. It pays 30-something cents a mile; even with my Ecological Disaster I can make money on that. It's good, easy billable time. Listen to the radio. Eat Robertson's beef jerky from the Love's store. Drink Pepsi. Generally a good time by anyone's definition.

But I wasn't planning to be out of town all day today. I had stuff to do.

I started out calling the judge's chambers. Some judges don't want to take faxed copies of orders. "Well the Judge might take it" said his secretary, "but I'm not sure the Court Clerk will. And the Judge won't be in till about 9:30 for you to ask"

So I called the Court Clerk to see if, assuming I could get the judge to agree to sign a faxed copy of the order, she could be persuaded to file a faxed copy. She hemmed and hawed and complained but finally allowed as she might do it just this once but I had to send the original to the judge to sign again and then file it with her again. I don't know how they were going to deal with the problem that the same order would have two different filing dates but I didn't care.

So I called the judge's secretary back. The Court Clerk will take it. If I fax it there, figure out how I'm going to get it from the judge's chambers to the court clerk's office 58 minutes away does she think the judge will sign it so I don't have to haul my ass all the way there. Well if I do all that, he probably would sign it.

Now to find someone to take it from the judge's chambers to the court clerk. We have "co-counsel" in the town where the court clerk is. I've never found him to be particularly helpful but they always say, "call him; I'm sure he can help." Well he didn't let me down. I called and left a message on his answering machine about what I needed but he didn't call back. I called again after I'd filled up my car. I was still thinking I would have to make that awful drive. It is getting close to 9:00 a.m. The judge's office told me I had to be there before noon because the Judge was going to another town for a hearing that was even further away. Leaving at 9:00 was going to be pushing it.

Co-Counsel's secretary wasn't very helpful. No she didn't know where he was. No she didn't know when he would be in. No she didn't know whether he would have time to take this order to be filed if I could figure out how to get it to the judge. But she'd be sure to have him call me just as soon as he came in. He finally called at 11:30 after I had fully resolved my problem no thanks to him. ThankYouVeryMuch.

I called one of the Court Reporters I'd used in this case. She wasn't in either. I called the judge's secretary again. No, she wouldn't give me the Court Reporter's home number (do none of these people go to work before 9:30). Would she call her and ask her to call me? Well she might do that.

I gave up hope. I headed toward the interstate. I was almost at the turnpike when the court reporter called. Yes, she would do it for me and she'd only charge me the state mandated mileage. Oh my good friend, charge me regular mileage and an outrageous hourly rate! If the client complains about paying it, I will pay it out of my own pocket. It was going to cost the client a huge amount of money for me to make that trip, close to $1,000, so I didn't really think they would bitch over whatever she was going to charge.

So I turned my own little Ecological Disaster around and headed toward work.

I should have gone to see the judge.

We have another case where our client is a non-profit corporation from another state who has been sued here by a resident. The resident is an expert witness who testified for the non-profit in its state in a case the non-profit had there. They got into a dispute over the fees and the expert hauled off and sued them here. I filed a motion to dismiss saying my client had done nothing to give our courts jurisdiction over it. The trial court disagreed.

The trial court judge is a woman I don't like who seems to really like these big firm lawyers and gives them whatever they want while she craps on me. I wonder sometimes if one of the partners in my firm dated, and dumped her, or something. I know that sounds sexist, but it's true. She belittles my arguments and when I win in the supreme court doesn't have the grace to say "well you had that one right didn't you, congratulations."

I've filed for a writ of prohibition in the supreme court. I think I might actually win. The expert witness did a real half-assed job about proving that my client had done anything to subject itself to the jurisdiction of the courts here and they carry the burden on that issue.

This week the expert served us with a notice to take deposition. The expert is pissed off about the writ. He’s pissed of that my client doesn’t seem at all excited about responding to his discovery. I think he may also be pissed off that I may actually win on the writ if he doesn’t do something fast; I think he realizes that he didn’t carry his burden and wants to do something at this deposition to show the supreme court why they shouldn’t issue the writ.

The Baba and I discussed this last night at dinner. The Baba thinks the expert should get an opportunity to conduct discovery to uncover the ultimate issue of fact; did the non-profit do anything to bring itself within the jurisdiction of the court.

I don’t think the expert witness is entitled to do that. I compare it to a motion to dismiss or a motion for summary judgment. Here a motion to dismiss or motion for summary judgment goes to the supreme court on accelerated appeal. That means you don’t get to write a better brief because they use the one the trial court had and you don't get to supplement the record with anything that was not before the trial court when it ruled. If you don’t get it right in the trial court, you don’t get another chance to fix it.

I found a case to support my position. Granted the time delay between when the motion was filed and when the motion was heard was huge in the case I found but I think the concept is the same. I may be wrong, but I think I can make that argument in good faith.

The problem is the client. This little lawsuit isn’t something they have budgeted for. This is a non-profit after all but my firm is not. They want us to be aggressive with the other side but their first question is always “what’s that going to cost?” They want us to resist, but they don’t want to spend any money doing it. They don’t want us to do anything without their approval, and then they want time to think about it.

So their response to the deposition notice was “we can’t be there.” And the reason they can’t be there isn’t even a really good excuse that I could lay on the judge like “the witnesses wife is getting ready to have a baby and he can’t leave the state.” Instead when I inquired about why they couldn’t have someone here, the response was “we have a staff meeting scheduled that day.”

So we outlined the options; we can do this, this and this and this will be the likely result if we do that and this will be the likely result if we do that and this or this might happen if we do the third thing. And no matter what you do, it’s going to cost you money because these things don’t just happen by magic.

And we need to decided something quickly.

And the judge might cut me off at the shoe tops and tell me to have you there tomorrow morning and they’d have to have someone there to testify Thursday and probably pay full price for the airline ticket.

None of those options are to their liking.

They want time to think about it.

The deposition is next Thursday.

Monday is a holiday.

We don’t have any more time to think about it. So we talked, had conference calls, I did more research and they caucused. When they finally decided what they wanted to do, the other side had already left for the weekend (it was OU/Texas weekend after all) and I can’t work anything out with him before Monday. But if I can’t work it out with the other side, I really need to be prepared to file my motion first thing Tuesday morning. Which means I should be researching and writing this weekend to have it ready to go because Monday is a day when I already have shit to do because I didn’t get anything done today between the problem with the order and the non-profits problems? But they don’t want to pay for it if they don’t have to so I should wait until I can talk to the other side.

I guess I should have gone to see the judge.