Wow. Just Wow

May 6, 2014 § 5 Comments

I am continually amazed, confounded and stupefied at how nonchalantly some lawyers approach their professional duties to their clients.

Thank goodness that most of the shoddiness I witness falls in the venial category — that merits only remonstrance and mere trial judge disgruntlement — usually involving minor dilatory, tardy, and unpreparedness misconduct, and resulting in few legal fatalities.

It’s one thing to step on a chancellor’s toes, but it’s an entirely different ballgame to run afoul of the Mississippi Supreme Court. Jane Tucker offers up this recent breathtaking example in which counsel for appellee had been ordered to appear before a panel of MSSC justices at 1:30 to show cause why he should not be sanctioned for asking for and getting extensions for, and then not filing, an appellee’s brief. Oh, and this same panel had sanctioned another dilatory lawyer earlier in the day, so whatever benevolence they had started the day with had been whittled away. Here’s Jane’s take:

Vicksburg Healthcare v. Dees – this is an interlocutory appeal from the denial of summary judgment in a med mal case where the plaintiff is seeking damages for bed sores.  The case against the nursing home went to arbitration.  Vicksburg Health Care moved to dismiss based on the plaintiff’s failure to have expert testimony regarding the alleged malpractice.  When the motion was denied, it filed a petition for interlocutory appeal which was granted.  Here is its brief

It is almost 2:00 and the attorney for Dees has not appeared. The weird thing is that there is no requirement that the appellee file a brief. There’s no default rule automatically reversing a case if the appellee fails to file a brief.(I’m not advising that appellees not file a brief, of course). I know from my own experience that when the appellee does not file a brief and there is oral argument, the appellee does not get to make an argument. (I was representing the appellant that time). Apparently Dees’ attorney made three requests for extensions (as explained in this order) and never filed a brief which is why her attorney was hit with a show cause order. The lesson here, then, is that if you are the appellee and you are too busy to file a brief, don’t ask for extensions. Here’s the response to the show cause order.

Dees’ attorney finally arrived. So the first question he is asked is why he was late. Not a good start. Same panel as this morning. Generally my method of fixing a screw up is to apologize, apologize, apologize. This attorney is taking the opposite tactic.

The Court recessed before starting with the show cause hearing. They came back and sanctioned him $500 for being tardy.

Another lesson – keep your address listing with the Miss. Bar current.

Lesson 3: if you’re scheduled for a show cause hearing at the Miss.S.Ct., don’t be late. And if you are late, don’t tell the Court you had an emergency meeting with a client in Canton.

The Miss.S.Ct. has always been extremely understanding when it comes to extensions for time. As far as I know, no one was ever executed in this state after having had their brief refused because it was a day late (that would be Virginia). It is one of the many reasons I would much rather practice in the Mississippi Supreme Court than the Fifth Circuit. I hope a few bad apples don’t screw it up for the rest of us.

All in all, this is painful. I may be having nightmares about this for years. It is so bad that the panel is exceedingly concerned about the attorney’s other cases. Justice Kitchens asked him whether there were people who would be going to jail if he screwed up their cases like he screwed up this one.

At 3:49 the Court recessed to deliberate. Dees’ attorney was told to stay and await a ruling.

Ruling: Around 4:30 the panel reconvened and ordered the following: the brief filed on behalf of Dees on February 26, 2014 at around 9 p.m. with the guard’s office that doesn’t appear on the docket and wasn’t served on the Appellant will be accepted. The $500 for being late to today’s hearing will be paid at $100 a month starting June 1. Dees’ attorney will also have to pay $1500 in expenses to the lawyers for the Appellant at $100 a month. Also, he is to report to the Miss. Judges and Lawyers’ Assistance Program within ten days. Since the Court cannot force him to do this, if he does not do this the Court will have the transcript of the hearing sent to the Miss. Bar to do with it as it sees fit. A copy of the order will be sent to Ms. Dees. Justice Randolph expressed some dismay at the fact that these show cause hearings used to be few and far between but that this was the third one this year.

Jane sent a few more observations from the debacle for me to add here:

The address thing was because I think he said he did not get the first order to show cause which was contained in this order.  He said he did not have a scretary and that he had abandoned his P.O. Box without having his mail forwarded.  This did not go over well AT ALL.
At the beginning he was asked why he was late and he told them about a client having an emergency in Canton but it turned out it wasn’t an emergency hearing it was a meeting.  WHen he was late, the clerk (Kathy, I’m pretty sure) called and asked him what was going on and he told her either that he forgot about it or didn’t know about it so the justices questioned him about that and he stated that he had failed to calendar it. I’m pretty sure it was Randolph who later said that if he were told to show cause at the Miss.S.Ct. he would have come a day early and camped out. 
I guess some lawyers think that the judge will not detect how deficient their performance is. But any judge can tell you that there is a huge and immediately perceptible difference between lawyers who are professional and those who are not. And I will bet that there is as much of a correlation between professionalism and success as there is between lack of professionalism and lack of success.

In this case, all I can say is “Wow. Just wow.”

And, by the way, if you’re not a regular reader of Jane’s Law Blog, you’re missing out on a super resource.

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