Reprise: It does not Pay to Get on the Wrong Side of the Clerks

February 19, 2015 § 2 Comments

Reprise replays posts from the past that you might find useful today.

CONTEMPT OF CLERK

March 27, 2012 § 10 Comments

Not too long ago I pointed out to a young, out-of-district lawyer that the lawyer had failed to get the chancery clerk to mail a copy of the publication summons to the defendant’s last-known address and note the fact on the docket, and that I could not sign the judgment until that requirement had been met.

Later, in the clerk’s office, I was told to my chagrin that the lawyer had entered in a huff, tossed the process on the counter, and said “The judge said that y’all messed up and didn’t send the process to the defendant.” The unhappy barrister complained that about a wasted trip from [somewhere far away to the west], and demanded that the clerk send the process by certified mail immediately, and then left in a cloud of dust, no doubt headed back to the more rarified and privileged atmosphere from whence that poor soul had descended into what I am sure the lawyer considered to be our little backwater corner of legal hell.

Not to be too picky — or prickly — but I never told that lawyer that the clerk had messed up. Nor did I instruct counsel to have the process mailed by certified mail (which the poor clerk did anyway at her own expense … Rule 4 only requires regular mail). And I certainly did not suggest to the lawyer to blame it all on the clerks, or even that the clerks were to blame at all.

This unfortunate episode illustrates what that sage chancellor, Frank McKenzie of Laurel, aptly characterizes as “Contempt of clerk.” It’s conduct that I’ve described here before.

Let’s face it: the chancery clerk is in a unique position to make your job as a lawyer enjoyably easy at one extreme or excruciatingly painful at the other, with myriad shades of gray in between. You get to choose how you get treated by how you deal with the clerks.

In this particular case, when the lawyer filed the process, the lawyer should have made a simple request of the clerk to mail the process, and should have provided a copy for the clerk to do so, and should have asked the clerk (politely) to do it right then so that she could watch the entry being made on the docket. And should have done so politely.

Now, you may ask “Why should the lawyer take responsibility to do that when MRCP 4 clearly says that the clerk is the one who shall mail, etc.” Well, there are several considerations that come into play:

  • You may look high and low in the rules, and you will find no penalty for the clerk failing to mail the publication; on the other hand, you and your client pay the price if you do not see that it is done.
  • You, not the clerk, are responsible for the proper handling and processing of your case.
  • As a practical matter, how are the clerks to know that this needs to be done in a given case unless you tell them? Chancery clerks are busy handling hundreds of transactions, many of which involve minute details, and you are merely one more customer among many, many. No matter how important you think that you and your case are, every other customer feels exactly the same way.
  • The easier you make the clerk’s job, the more likely it is that it will be done to your satisfaction.

Part of making the clerk’s job easier is human relations. It doesn’t take much sense to realize that a pompous, arrogant, demanding jackass will experience a certain level of customer service, and a polite, cooperative, prepared professional will have an entirely different experience. Vinegar vs. honey.

In my opinion, there is never a reason to treat clerks in a demeaning or rude fashion. Ever. For one thing, they are in a demanding job and they are doing the best they can do. For another, they are an important arm of the courts, and they deserve the same respect from you as a professional that you show to all other court personnel.

The penalty for contempt of clerk can be drastic. Would you rather get a call the day after you mailed that complaint telling you that you had neglected to enclose a check for court costs, or would you rather find out six weeks later that your pleadings have been setting on a desk awaiting your check? I’m not saying that a clerk would be so unprofessional as to do something like that intentionally, but with scarce resources, clerks have to triage matters, and, human nature being what it is, butterflies draw more favorable attention than dung beetles.

§ 2 Responses to Reprise: It does not Pay to Get on the Wrong Side of the Clerks

  • Ben Conner says:

    I hope that all the clerks in all the courthouses for all the courts everywhere read your comment.
    1. To the lawyers who pass blame on to their own secretaries and to the deputy clerks, remember “The buck stops here.” Your malpractice carrier thinks that you are responsible for following the law and the rules. Not them.
    2. If you think the Deputy Clerk did something in error, take it up with the Clerk in private. It’s not your job or your place to scold somebody else’s employee.
    3. The Deputy Clerk works in that office 40 hours a week. You don’t. They know what they’re doing. If you don’t know what they do, it’s because you didn’t ask.
    4. Want to know how to do something right in their office. Ask them. It’s their job to tell you.
    4. The Clerks do little favors for you all year long. Take them a cake.
    5. It’s not what you don’t know that gets you in trouble. It’s what you do know that just ain’t so.

  • Bob Wolford says:

    Young lawyers like you described in your scenario have larger issues- they are self-important, all-knowing, unaccountable and were probably raised believing that they are the center of their own little universe. Most of us lawyers who clerked in the private sector during law school were taught exactly as you say in your prior post- be respectful and patient because a clerk’s staff can either make your job easy or incredibly difficult. Having said that, some deputy clerks out there operate like the soup Nazi from Seinfeld- best thing to do is hand them your money, get your stamped copies, and promptly remove yourself from their presence.

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