Pat Benetar belted out the lyrics
"It's a little too little, it's a little too late . . . I'm a little too hurt and there's nothin' left that I've gotta say"
They remind me that the passage of time may not heal all wounds. It may be that we reach a point where we have squandered our opportunity. In the practice of law, there are statutes, regulations, and rules. Among those rules are the rules of professionalism. They are not always as clear as we might wish, but they are there.
I was reminded of professionalism recently while reviewing a motion. Time and again, I have reiterated that when parties have disagreements, the correct course is to file a motion. See Rule 60Q-6.115 ("Any request for an order or for other relief shall be by motion"). Of course, the proper methodology for relief is to file a motion.
But, that does not mean that one may jump to this course without contemplation and forethought. Those are hallmarks of the legal profession (not "business," "profession"). And, after being thoughtful and reflective, there is also the requirement to follow the rules. The drafter of this particular motion skipped over the requirements of the rules, and as many times as I have written about this topic, it bears repeating. The entirety of the substantive portion of the motion in question says:
"COMES NOW the Employee/Claimant by and through her undersigned attorney, and pursuant to Rules of Procedure for Workers' Compensation Adjudications 60Q-6.115, files this her Motion to for Protective Order in the above captioned matter and as grounds therefore, states:1. That the Employer /Carrier has unilaterally scheduled the deposition of the Claimant in this matter for __________, 2018 at 10:00 A.M.2. That the undersigned's office previously advised counsel for the Employer /Carrier's office the undersigned is unavailable on __________, 2018, since the undersigned has a mediation at 9:00 A.M. (and said mediation has been scheduled since March). Copies of the email correspondences regarding scheduling are attached hereto as Exhibit 1.3. That the undersigned offered __________, 2018 (one day earlier) for the deposition of the Claimant. However, Employer /Carrier's counsel declined the date and proceeded to unilaterally schedule the deposition for __________, 2018. A copy of Employer/Carrier's Notice of Taking Deposition is attached hereto as Exhibit2.4. That by unilaterally scheduling this deposition, the Employer/Carrier attempts to cause annoyance, harassment, and or undue burden on the undersigned and the Employee/Claimant.WHEREFORE, it is respectfully requested that a Protective Order be entered and to impose fees and costs for the bringing of said Motion F.S. §§440.32, 33, or 34."
So, what is missing? The Rules themselves identify two glaring deficiencies.
The very rule that counsel relies upon for relief, Rule 60Q5.115 requires that attorneys and parties speak to each other:
"(2) Except for motions to dismiss for lack of prosecution, prior to filing any motion, the movant shall personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion. All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of record and shall state whether any party has an objection to the motion. Any motion filed without this certification shall be summarily denied. (Emphasis added)."
And, the same rule requires that the outcome of that conversation (or the attempts at it) shall be stated in the motion itself. The motion above does not recite that the conversation occurred or that any "good-faith efforts" at such a conversation occurred. Thus, two failures: communicating first and documenting in the motion. See Its About Communication (May 2017).
As an aside, any party may seek sanctions (fees), as this motion did. But, before seeking fees or costs, it is recommended that you comply with the rules. And, if sanctions are sought, one might find Rule 60Q6.125(4) of interest: "A motion for sanctions under this rule shall be made separately from other motions or requests," pound shall be served upon the opposing party, and 21 days afforded for that party to attempt to cure the offense. Only then should a motion for sanctions be filed.
There is another, underlying, element here worthy of discussion. Twenty-five years ago, the Professionalism Committee of the Trial Lawyer's Section established guidelines for professionalism. they were approved by the Circuit Judges. The workers' compensation practitioners took up the issue also and in 1997 the Section adopted it. A confederation of Judges of Compensation Claims also voted to endorse the Guidelines. The Bar has since amended those expectations, and they are published on the Section website.
Of note, a lawyer should both "promote the public good" (follow these guidelines) and "counsel and encourage other lawyers to abide by these Professionalism Expectations." A "lawyer should accede to all reasonable requests for scheduling." In the original Guidelines, there was more clarity
"Attorneys must, except in extraordinary circumstances, communicate with opposing counsel before scheduling depositions, hearings, and other proceedings — to schedule them at times that are mutually convenient for all interested persons."
Professionalism requires that attorneys communicate with one another, and that they respect the limitations and commitments that others have. Though a particular date and time may be ideal for one, it may be unworkable for another.
The dispute in this matter began when agreement was elusive. That resulted in frustration and a unilateral setting of an appointment that conflicted with opposing counsel's calendar. Then communication stopped, and instead a dispute evolved, which became the motion seeking relief and sanctions, without the prerequisite of communication and documentation. And, the judge might well have simply denied the motion on those grounds ("shall be summarily denied").
But the judge instead issued an order to show cause. That order noted the procedural deficiency, and noted that "Cooperation and professionalism is a key component to swiftly determining the rights and responsibilities of the parties pursuant to F.S. 440, et.seq." The order required the two counsel of record specifically listed as the recipients of the order to appear "in person" to show cause "why the motion was not in compliance with the cited rule" and "why the parties cannot exercise cooperation and professionalism in scheduling a deposition."
One of the counsel of record appeared as ordered. The other attorney instead ignored the instruction and sent an associate to stand in. In other words, one of the attorneys disregarded the order's instructions, similarly not a nod to professional conduct. Simply, "in person" is neither confusing nor ambiguous. But, the result of this meeting in person and discussing their situation, was positive. The two attorneys apparently found that communication and compromise are each effective tools in the business of litigation. The judge overlooked the recalcitrant attorney who ignored the instructions and sent a surrogate associate.
But, imagine the time, inconvenience, and trouble they could have avoided if they had communicated earlier. Because after feelings are wounded and documents have begun flying back and forth, it may be "a little too little, a little too late." And, then come hearings, recriminations, and perhaps orders one would not prefer to receive, or to explain to one's clients.
