by Lee Gesmer | May 17, 2006 | What Were They Thinking
What Were They Thinking? Even the least experienced Massachusetts lawyer knows that when an answer to a lawsuit is not filed within the requisite 20 days and a default judgment is issued, the default is easily set aside as a matter of course based on even the flimsiest excuse. And, if the answer is filed only one day late professional courtesy mandates that the plaintiff permit the defendant to file late.
Apparently some lawyers in a large Boston law firm (unidentified) never got this message: they refused to agree to set aside a default under these circumstances, forcing the defendant (who filed his answer one day late) to file a motion to remove the default. After reviewing the law and (predictably) setting aside the default, Superior Court Judge Mitchell Sikora slammed the plaintiff’s lawyers hard:
Beyond the letter and purpose of the legal standards, conscientious judges and attorneys attempt to implement our litigation system with reasonable efficiency, civility, and common sense. This episode illustrates an egregious breach of those professional and cultural values. Counsel for Perrina Construction Company, a large Boston firm, has engaged in a mean-spirited and wasteful tactic. It has wasted the time and effort of an opposing attorney practicing in a small office. It has wasted the time and effort of the Superior Court. If one were to dramatize the public’s worst image of the contemporary litigator, it would employ the present scenario in which a large firm procures an instantaneous default and then stonewalls against its removal in utter disregard of the letter and purpose of the governing legal standards. The performance of the Perrina attorneys would be rich grist for the mill of a contemporary Dickens.
REMEDIAL ORDER FOR SANCTIONS
This cynical shenanigan will exact a price from its practitioners. The court will entertain a motion for an award of fees and costs from attorney Murphy. He will file and serve that application, supported by a verified itemization of the fees and costs, within ten days of the entry of the present Ruling and Order. From the date of service, counsel for Perrina Construction will have seven days for filing and service of any opposing papers.
The court will conduct a hearing upon that application on March 15, 2006. Attorney Murphy will attend. The court orders all three attorneys whose names appear on Perrina Construction Company’s opposition to the removal of default to attend that hearing. Attendance is not optional. All three attorneys shall attend.
Here is a link to the full case [link]
by Lee Gesmer | May 5, 2006 | What Were They Thinking
What Were They Thinking? Three California appeals judges thought not. In dismissing a defamation suit by two politicians who were listed as numbers one and two on a list of “Top Ten Dumb Asses,” the Court observed:
The accusation that plaintiffs are top-ranking “Dumb Asses” cannot survive application of the rule that in order to support a defamation claim, the challenged statement must be found to convey “a provably false factual assertion.” . . . A statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. It is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. To call a man “dumb” often means no more than to call him a “fool.” One man’s fool may be another’s savant. Indeed, a corollary of Lincoln’s famous aphorism is that every person is a fool some of the time.
Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb” merely converts “contemptible person” to “contemptible fool.” Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition.
Vogel v. Felice, 2005 WL 675837 (Cal. Ct. App., March 24, 2005).
by Lee Gesmer | Nov 9, 2005 | What Were They Thinking
As we rapidly approach the holiday time of year, it’s worth remembering that not all lawyers lack a sense of humor or a talent for poesy. In fact, some have both . . . .
“The Grinch Hated Christmas” ….
by Lee Gesmer | Jul 11, 2005 | What Were They Thinking
Yesterday’s masters of the universe are today’s cosmic dust.
Anon
_____________________
What Were They Thinking? A case that has received enormous attention in Massachusetts is the Massachusetts Board of Bar Overseers investigation into the activities of several attorneys for the defendants in the Demoulas case, a state court case involving claims of breach of fiduciary duty surrounding the ownership of a large New England supermarket chain.
The case itself was a legal odyssey, spanning years and numerous state court decisions, but it is the aftermath of the litigation that stunned lawyers in Massachusetts and around the country. The losing defendants, dissatisfied with the decision of State Superior Court Judge Maria Lopez (who has since resigned in ignominy over a criminal molestation sentencing fiasco) and suspecting bias on her part, concocted a charade intended to induce the judge’s then law-clerk to disclose the inner workings of the judge’s chambers while the case was in litigation, and presumably prove that the judge’s clerk, rather than the judge herself, wrote the final (and most important) decision in the case.
The saga of how Gary Crossen (then of Foley, Hoag & Eliot, and former ethics counsel to two Massachusetts Governors), Richard Donahue (a former President of the Massachusetts Bar Association, chair of its Commission on Professionalism and President of Nike, Inc.), and Kevin Curry, (a former Massachusetts Assistant Attorney General), lured the judge’s former law clerk out-of-state in order to tape record his “confession,” attempted to bully him into signing an affidavit, conducted surveillance on him, and more, is described in agonizing detail in the 229 page decision. As a fan of hard-boiled detective novels (including Boston’s current claim to fame, Dennis LeHane, author of Mystic River and other engrossing works), I can only say that in Boston, reality is stranger than fiction.
After years of hearings and delays Bar Counsel issued her decision recommending the “ultimate sanction,” disbarment of all three attorneys. Her decision is now working its way through the Board of Bar Overseers and will ultimately be in the hands of a single Justice of the State Supreme Judicial Court. The consensus in the community appears to be that bar counsel’s decision will be followed.
Once again, we ask, “what were they thinking”? Even if the Demoulas lawyers had established that the Judge’s clerk had “done it” (written the fatal decision, that is), so what? What would they have done with that information? Used it as a basis to attack the integrity of the decision? Hardly a winning strategy.
- You can read the case here
by Lee Gesmer | Jul 6, 2005 | What Were They Thinking
A word to the wise ain’t necessary, it’s the stupid ones who need the advice.
-Bill Cosby
What Were They Thinking? It fascinates me when lawyers do exceptionally stupid things. One would think that the successful completion of four years of college and three years of law school (not to mention years of experience watching clients do unwise things) would inoculate lawyers against the most foolish forms of human behavior. But, of course, experience shows otherwise. Even experienced lawyers are as likely to be rendered stupid by fear, greed, hatred and jealously, and to act on those emotions, as any other highly educated person. Maybe more so – education doesn’t necessarily impart common sense.
A recently reported Massachusetts Superior Court case informs on this point. Although this case provides an interesting legal treatment of a contract issue (indeed, so interesting that the case was featured on the front page of Massachusetts Lawyers Weekly), it’s primary appeal is morbid curiosity. What was he thinking?
An attorney in good standing in Massachusetts (who will remain unnamed), was employed as Director of Procurement for Navisite. To make a somewhat long story short, his employment was terminated by Navisite in early 2002. After some back and forth over the terms of his severance, Navisite agreed to give the attorney two weeks severance pay ($5,300) and to pay his first month of COBRA benefits.
The lawyer, however, had other plans. After receiving this agreement from Navisite, he modified the boilerplate release language to provide:
“You will be paid eight hundred and fifty thousand dollars for wages earned, if not paid in full within seven days you will be paid three times this amount along with all your expenses and legal fees, all the officers and directors will be personally liable as well. ” [sic passim]
This language was added in such a way as not to attract Navisite’s attention to the alteration, and was signed and returned to Navisite without any mention of the change.
Navisite’s HR director briefly reviewed the document, didn’t spot the change, and signed the agreement.
Predictably, it was all downhill from there. After receiving the two weeks severance and the one month of COBRA benefits the lawyer made demand for $850,000 on Navisite and Navisite sued to rescind the agreement. The lawyer relied on the Massachusetts doctrine that “in the absence of fraud, one who signs a written agreement is bound by its terms whether he reads and understands it or not or whether he can read or not.” However, a Massachusetts Superior Court Judge had no trouble finding multiple grounds for rescinding the agreement (no meeting of the minds, unilateral mistake, unconscionably), and ordered the attorney to return to Navisite the severance payment he had received
This result was as predictable as rain in November in Boston. One hopes his attorney did not take this case on contingent fee.
