"Don't worry about the future; or worry, but know that worrying is as effective as trying to solve an algebra equation by chewing bubblegum."That song is running through my head as I write this. More on that below.
I was recently reminded of a 2016 film in which Ben Affleck (Christian) and Anna Kendrick (Dana) starred, The Accountant. It is an iteration of the old trope of opposites attracting, and perhaps learning they are not really opposites. They each become targets of an assassination attempt, and Christian rescues Dana from the would-be assassins. On the run, they visit Christian's hideout on wheels, an Airstream trailer. As he packs mechanically, she expresses feelings and some of the stress accumulated through the preceding assassination attempt, erupting at him eventually with:
"Dana: Sarcasm, is that sarcasm?"
"Christian: No. it's not sarcasm, I don't use sarcasm, its irritation."
See, Dana was put off, and upset because she perceived sarcasm. That perception leads to her angry confrontation. Christian never intended sarcasm, but it was taken as such. And, he is clearly as unwelcoming of sarcasm as she is. That is because his statement has merit: "It's irritation," perhaps it is more specifically "an irritation." He is blithely conversing with her, relaying facts, and not intending either sarcasm or offense. And, they have the advantage of facial expression, tone, and tenor. In email or other writing, it is even easier for someone to perhaps misconstrue your statement, to take as sarcastic something you never intended.
I was reminded of The Accountant scene recently told of a communication reaching a judge. The story started when an attorney filed a "notice of unavailability" in a case. The document was titled in the docket "CLAIMANT'S NOTICE OF UNAVAILABILITY" in all caps. At the outset, at the risk of being called an old codger, ALL CAPS is seen by some as shouting. Perhaps not so much by the Millennial and Next-Gen folks, but still by some of us old-timers.
The Notice listed 34 dates in an 84 date period during which counsel would "be unavailable." It noted that counsel would therefore be "unable to attend hearings, depositions, mediations, and trials." Furthermore, it requested that "motions, notices to produce, interrogatories or other pleadings which require a timely response not be filed during these dates."
The Notice did not provide or cite any legal authority upon which a Notice of Unavailability would be based. The Florida Chapter 60Q Rules of Procedure for Workers' Compensation Adjudication do not provide any authority for a notice of unavailability. And, these are the only rules applicable to the litigation of workers' compensation claims in Florida, see Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004)("The Office of the Judges of Compensation Claims (OJCC) is not a court"; "this Court has no authority under the Florida Constitution, nor has this Court ever had the constitutional authority to promulgate rules of practice and procedure for" the OJCC).
It is always advisable to include authority when filing a motion or notice with any adjudicator. Lawyers that cite authority (rules, statutes, case law) increase their chances of prevailing. This is a practice tip I commend to all attorneys, one I learned from a great mentor years ago. Show the adjudicator the path to the outcome you wish. Cite authority; attaching a case, statute, or rule is not a bad idea either.
The story now returns to the 34 dates of unavailability. During one such period, an email inquiry was sent to counsel by the assigned judge. The attorney's response was not responsive to the inquiry. The response merely sarcastically thanked the judge for "acknowledging" the Notice that was filed and reminded the Judge that the attorney would "not be available" until the attorney returned to town. The response was inappropriate and did not epitomize professionalism. If not available, it is the counsel's responsibility to arrange for rescheduling or coverage of events such as hearings or depositions. Yes, that is work. It is the work of lawyers.
The Judge responded and explained that there is neither any "provision in the 60Q rules for the filing of such notices," nor any way for a judge to keep track of everyone's availability. We currently have about 4,000 attorneys registered with e-JCC. Some of those are likely dormant, and others still are infrequent users. But, that is a significant number. The OJCC does not have any way of keeping track of when 4,000 various attorneys are available or not. Imagine yourself striving to keep tabs on the calendars of a couple thousand of your closest friends (sarcasm, it is an irritation even when I use it).
That response by the judge, that there is no authority for such a notice nor any way to keep track of such dates, precipitated an interesting response:
"You are so particular - and my having filed it knowing that - I thought it would matter, but clearly it doesn’t..... I’ll make a note for all of my cases with you in the future. Thank you have a wonderful day."
The implication is that the fault lies with this particular judge ("cases with you"), when the fault lies with the attorney. I am curious what would make an attorney think "it would matter?" Is there a rule or statute that says so? If there is, cite it in that notice.
This attorney relies upon a notice that is founded on no discernible authority, a notice neither defined nor allowed by the rules. This attorney confuses the courtesy of informing co-counsel and opposing counsel of unavailability, and some prophylactic constraint on the judge. A notice of unavailability is a useful and courteous communication to others in your case. There is no authority found that says such a communication controls the assigned judge, or that any judge or mediator has some obligation to search each of her/his assigned case dockets for such information, even if it is in ALL CAPS.
So, one might remember that courtesy is appreciated. But expecting that the filing of a notice of unavailability will somehow control a judge or a court is likely about "as effective as trying to solve an algebra equation by chewing bubblegum." In other words, it is not effective. It might be noticed, and it might save some time, but such filings are really a courtesy to co-counsel, they are notice, not protection. And, sarcastically chiding a judge, who follows the published rules, for not following your perceptions or ideations about such a document (that is not in the rules) is inappropriate.
Let's all strive to remember we are in this practice, system, and community together. We need to try and be empathetic for the challenges that each other faces. Lawyers should be specific, cite authority, and remember the rules. Judges should issue timely rulings, cite authority, and remember the rules. But above all, everyone should remember we are all in this together, and "sarcasm is an irritation." It has no place in our practice or in communications with your assigned judge. And, if you could refrain from the ALL CAPS, "that would be great." Office Space, 1999.
