A Warning to Law Students and Young Lawyers

and maybe older lawyers ....


From Bassett v. Jensen (D. Mass.) today:

Magistrate Judge M. Page Kelley: … [P]laintiff's motions to compel, are denied. This case is scheduled for trial on August 12, 2021.

On November 10, 2020, Judge Saris ordered that the parties were to exchange expert reports by February 21, 2021, responses due by February 26, 2021; Daubert depositions by March 26, 2021, Daubert motions by April 9, 2021, oppositions by April 23, 2021, and motions to compel to be filed by February 5, 2021. On January 25, 2021, the parties filed a joint motion for extension of time of the deadlines, which Judge Saris granted the next day, setting out the new deadlines: disputes regarding still photos due by March 16, 2021, parties to exchange expert reports by March 18, 2021, oppositions due by April 12, 2021, motions to compel due by March 22, 2021, oppositions due by April 5, 2021, Daubert depositions due by May 10, 2021, Daubert motions due by May 24, 2021 and oppositions due by June 7, 2021.

At a hearing on November 10, 2020, when Judge Saris was setting the dates for the first schedule, above, she said to the parties: "So to the extent there's a motion to compel, you can't sit on it if you don't move or you don't do anything, I'm going to say you waived it because we really have to get this ready for trial next summer."

Judge Saris set out a comprehensive schedule encompassing all motions necessary to move this case toward trial. When asked, she promptly granted an extension of those motions. She explicitly warned the parties that if they did not meet their deadlines, particularly addressing the deadline for motions to compel, she would deem them to be waived.

The motions to compel were filed on April 14, 2021, thirty days after the court-ordered deadline. The court ordered plaintiff to file a memorandum explaining why the motions were filed when they were and she did so. Plaintiff seems to have entered into an "email stipulation" with defendant to a 21-day continuance of all the deadlines set by Judge Saris, without filing any motion with the court.

The court notes that even had this been an acceptable way of extending the deadlines, which it was not, plaintiff still exceeded the phantom deadline for filing motions to compel by two days. "[A] litigant who ignores a case-management deadline does so at his peril." Rosario-Diaz v. Gonzalez, 140 F.3d 312, 316 (1st Cir. 1998). The motions are untimely and are denied.

I don't know anything about the case, and, as the Krylov fable goes, "Who is right and who is wrong, is not for us to judge"; but I thought it was useful to have a bit of a window into what can sometimes happen.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. Is the case over in the absence of a Daubert motion and supporting depositions?

    Missing a deadline is malpractice. Is disobeying a court order negligence per se?

  2. This is the Martha's Vineyard rental porn case so I guess it has more attention paid to the docket than usual.

    1. Maybe the lawyers got . . . um . . . addicted to the evidence.

  3. Doesn't happen in New York state court. Complying with a court-ordered deadline marks you as a newbie and a chump. I stopped doing it after the first few years.

    1. Complying with a court-ordered deadline marks you as a newbie and a chump. I stopped doing it after the first few years.

      Poe's Law is in effect.

      1. Do you know any lawyers who practice in New York courts? I’ve been doing it for 30 years. It is the truth.

    2. There is zero lawyer accountability in the law. That justified violence against the hierarchy of this criminal enterprise in formal logic.

  4. Absolutely you should try to obey deadlines and not do "email stipulations" of things that the Court has to extend.

    Having said that, on motions to compel specifically, I have run into some judges that are very unrealistic about such things, e.g., with strict "pre-motion" requirements or with deadlines that don't allow time for preparation of a motion to compel after a deposition (when you need to get the transcript, identify the specific questions not answered, etc.).

    The basic reason for this is that judges hate discovery motions. But I've seen some versions of it that are strict enough that they veer into denying litigants due process. You need to be able to have enough time to fairly prepare a motion to compel, and judges need to hear and consider fairly prepared motions to compel. It's not fun, but people refuse to answer legitimate discovery all the time.

    1. @ Dilan Esper: Ditto all of that.

      I've often been hired to represent litigants (usually defendants) in Texas venues that have ranged from unfavorable to outright corrupt. And a sadly common means of de-leveling the playing field is strict enforcement of every procedural rule for some, but only for some. It is very hard to get a mandamus based on a local counsel's mistaken prediction that "Judge Doe always grants these agreed continuance motions." Sure he does — for that local lawyer, at least when he was representing someone local instead of an out-of-state company that's a potential net boost to the local economy via revenues generated at the county courthouse.

      This of course affects the economics of litigating in such places, and definitely skews settlement values upwards across the board in those venues. "Belt & suspenders" isn't enough; sometimes you need belt, suspenders, 500 yards of Saran Wrap, and 30 rolls of duct tape, and that still isn't enough to keep you from blundering into some technical default that can become the petard to hoist you upon.

  5. In my experience a lot of lawyers are not diligent in prosecuting their cases but attempt impose unrealistic deadlines on non lawyers.

  6. I once had a crush on Judge Saris. I'm startled now, as I realize that that was more than half a century ago! Time flies.

    1. You can probably get a date with her now.

      1. I would feel bad, that I would just be exploiting a judge for her body, since they are all so stupid. If a Democrat, I would also need 3 bags, two for her face, one for mine in case her two broke, duct tape for her mouth.

  7. It's usually better to seek permission than ask forgiveness. This is almost universally true when one seeks to vary from the express provisions of a court order, even if all parties are in agreement that a variance is needed.

    A colleague of mine who usually practices in state court tried a jury case in federal court earlier this year in which neither side had filed any objections to the others' proposed exhibits. Both assumed that objections would be made and ruled upon when the individual exhibits were offered, or perhaps at the final pretrial conference just before jury selection. Instead, the judge sua sponte deemed all objections waived, and ruled that all of both sides' proposed exhibits were admitted for all purposes. Although the ruling was even-handed, its effect predictably was not: The plaintiff had many more exhibits than the defendant, as is typically the case for the party with the burden of persuasion, and many more of the plaintiff's exhibits were legitimately objectionable. Although both lawyers looked like idiots in front of their respective clients (outside the presence of the jury), only one side was disadvantaged by the ruling.

    When I was in law school, my torts professor cautioned us all that we should never presume any lenience or even particular flexibility, even based on past rulings from the same judge, even in the same case: You never know when you'll have a visiting judge suddenly parachute in to pick up the reins due to illness or death or other emergencies.

    And since you may, without notice or warning, find yourself before him or her, you should always plan your procedural tactics, and write your motions and responses, as if they're to be reviewed by a hypothetical "Judge Fiendish."

    That stuck with me, and 40+ years into the practice of law, I try to always practice as if I'm before Judge Fiendish.

    1. (And unto you, Prof. V, and all of your readers, I freely grant an unlimited license to re-use for your students' benefit, with or without alterations, the parable of Judge Fiendish. Today's law students and young lawyers definitely need instruction in it.)

  8. One thing I can add to the sage advice here, especially for federal courts, is READ THE JUDGE'S RULES. These are generally available on-line. If you follow them, you will have much less chance of being surprised or hurt by procedural mistakes.

    1. It appears to me that the First Circuit is more eager than most to declare rights "waived" instead of "forfeited". This is an impression, not an academic study.

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