It can be difficult asking for help. However, nip it in the bud. The possibility of a do-over may be non-existent.
Written by: Patricia I. James**
I was sitting in court not too long ago, listening to the cases before me. On this particular matter, an attorney was making his appearance telephonically. If I recall the circumstances correctly, he explained that he had been ill and continued to be ill (and he certainly sounded like it on the phone) so he had missed timely responding to some requests for admissions that apparently gutted his client’s lawsuit. He had requested an extension of time from opposing counsel but opposing counsel had denied this request. (To be fair, it is possible opposing counsel had previously granted an extension or two but finally had to go forward). The granting of the motion that was then before the court, based on the failure to respond to these admissions, would result in the dismissal of his client’s case. The tentative ruling was to grant the motion.
The attorney asked that the motion not be granted and, instead, that he be sanctioned for not timely responding to the requests for admissions. The judge listened carefully to both sides but said that she had to grant the motion. She said that, if he had come in ex parte and explained the situation, she could have helped him. However, now, it was too late.
This was heart-wrenching. I sat there, feeling so sorry for this attorney. However, the judge was right. She was following the law. I would have just liked to turn back time for this man. I don’t know what ultimately happened. However, I am inclined to guess that, on top of his illness, his burden was made heavier by his client’s lawsuit against him for malpractice. Bottom line, if he had just asked for help….
On a personal note, some years back,I had missed a deadline to file a motion to compel further answers to discovery. Simply put, if I send out, for example, special interrogatories (specially prepared questions for that particular case) to the defendant, and I get what I deem to be inadequate answers, I have 45 days within which to bring a motion to compel further answers
Unfortunately, although I had computed the 45 day deadline adequately, I had overlooked the discovery and motion cutoff that was previously set by the court. (See Post #3). When my office called the calendar clerk to set a hearing, the first available date for the motion was after that motion and discovery cutoff. Thus, I had to set an ex parte hearing (a hearing that does not require the usual 30 day notice but just requires giving opposing counsel at least 24 hours notice prior to the hearing) to get an order shortening time to set the hearing or request that the hearing be set after the cutoff.
I appeared before a wonderful judge, who is now on the appellate court and, who I, along with various other female attorneys I spoke to, wanted to grow up to be just like her (keeping in mind that we were all about 40+ at the time). I just fell on my sword, told her that I made a mistake and explained what had happened, as set forth above. She very graciously accepted my explanation/apology and granted me additional time and a hearing date for the motion.
In sum, in law, as in real life, don’t ignore or bury your mistakes. You might hope that they will just go away (like that rattle I keep hearing in my car). However, more often than not, they won’t. and they can just get worse over time. Work on fixing them and, if possible, enlist the judges’ help. You just might be pleasantly surprised at how willing they are to do so.
**No portion of this Post is intended to constitute legal advice. The views expressed are solely those of the author.