Photo by Jonathan Rotondo-McCord
A straight-up clusterf***k recently blew up in a pretty weird case pending in U.S. District Court for the District of Minnesota.
In the case, a man, Kearns, bought stained glass windows from a church in Michigan. He had them shipped to his home in Maryland and then subsequently died. The windows were later reported stolen. Law enforcement was called in and the windows found for sale on-line by a Minnesotan. The Minnesota on-line seller claimed he bought the windows for $11,000. Law enforcement did not buy his story and they charged the Minnesota on-line seller with stealing the windows.
Did he steal them or did he buy them? We might never know.
The lawyers for the Kearns estate appears to have blown several deadlines and it is not clear the estate’s claims will survive the lawyers’ apparent procedural mis-steps…
A lawyer (NOT ME OR MY LAW FIRM) explained in a sworn declaration submitted to U.S. District Court Judge Donovan W. Frank (D. Minn.):
My internal office procedure is that when motion documents are received, the date of the motion is to be placed on my calendar and an internal tracking process is then instituted for the drafting of a response. [That procedure was] not followed in that the date of the Motion was inadvertently not placed on my calendar. Accordingly, the internal tracking process was not instituted. The failure to follow those procedures is ultimately mine.
This apparent error by a lawyer with more than twenty years of experience under his belt might cost his client’s case. (Note the use of passive voice: “my…procedure is that when motion documents are received,” “the date of the motion is to be placed..,” “[a] tracking process is then instituted,” “the procedure was not followed,” the “internal tracking process was not instituted…” These are all in the vein of the much condemned: “mistakes were made…” We generally frown on distancing oneself from personal responsibility with this kind of disembodied verbal evasion. But could there be some validity to the point that the problem here could be a law firm’s problem to some material extent, not the lawyer’s? (For example, some firms fail to have firm-wide calendaring system or fail to have adequately networked computer systems.))
We all have calendars to track deadlines. The question is, what can we do, what systems can we put in place to back up the systems we have in place?
Unfortunately, the answers to this simple question are unbelievably easy but also impossible to adhere to 100% of the time.
- If you are fortunate enough to have secretarial, paralegal, and associate help, you can and should have redundant docketing or calendaring assignments — multi-layers;
- If you do not have that good fortune, some time or other, there is simply a very high risk of human error one time or another.
The lawyer who submitted the declaration in the Kearns case appears to have had the human resources at his law firm. It would seem the law firm might not impose any redundant systems, however? I note that one of the lawyers on the case had left the firm during the pendency of the case. The “hand-off” is frequently where “mistakes are made…”
The lawyer and the law firm’s task was probably particularly challenging in that they represented Estate of Kearns, an out-of-state estate — that is, they probably did not have a a real live local client looking over their shoulder. They might have had an entirely disengaged client.
But what can a solo lawyer do to mitigate the risk of a dropped ball?
- Docket every deadline on every scheduling order (and amended scheduling order) (and deposition notice) (and amended deposition notice) etc. etc.
- Live your professional life under constant stress because there is no question that you will foul up from time to time and it will never be pleasant;
- On the bright side, that constant stress and dread of missed deadlines should feed a fairly intense vigilance whenever anything crosses your desk or your email that includes a deadline;
- Physically write check-marks on all scheduling orders when the deadlines have been docketed in an electronic calendar; if you see a scheduling order without the check-marks, double-check the electronic calendar (and either enter the dates or put on the checkmarks);
- Include multiple reminders for all major deadlines;
- Consider a coding system including a similar code or preface for all deadlines in particular cases and in all cases (e.g.: “Jones/Smith DL Deadline: SERVE ALL DISCOVERY BY THIS DATE”) so you can search by case name and you can also just search “DL” for, say, all upcoming deadlines in all cases;
- If your client(s) are not dead, they can and should be your team members. You cannot and should not rely on clients to track your deadlines, of course. On the other hand, if you communicate regularly and clearly, if you have an engaged client, they can save your bacon when it might otherwise get burned badly.
- Remember that no one dies when deadlines are missed. Cases can die from missed deadline with terrible consequences for lawyers and for their clients. But clients survive (often as former clients for obvious reasons). But there is almost always a “fix” or a remedy;
- Carry professional malpractice insurance.