Hello all, and welcome back for your first young lawyer tip in a while. I apologize for the impolitic title to today’s post, but it’s the perfect tie-in to my pic of the beloved movie character Col. Nathan Jessup from A Few Good Men. In a movie that already was excellent for two hours, Jack Nicholson and Tom Cruise put on a heckuva show in the climactic court examination of Nicholson’s character. Cruise’s character, attorney Lt. Daniel Kaffee, sets up Col. Jessup perfectly by having him wax poetic about the importance of following orders in the Marine Corps, evoking the line, “We follow orders, son. We follow orders or people die! It’s that simple!”
Well, this post is meant to convey that message to young attorneys. Court orders are to be followed to the letter! If an Order cannot be followed, you better ask for relief from the Order. I have a recent example to prove this point, which I will share without mentioning cases or names. Recently, in one of my cases, my opponent and I were under an order to not only procure a mediator, but to set the time and place for mediation. Most orders referring the parties to mediation simply require the parties to agree on a mediator by a certain date and to complete mediation by another date. This order actually required the mediation date to be set, even though the parties literally had about a six month window to set it.
My opponent, apparently used to the more typical referral orders, basically blew me off until the last moment in response to my efforts to set the mediation. Accordingly, the parties were not even able to agree on the mediator until the due date for the Notice of Mediation. I thought to myself, “This is no big deal. We have six months to mediate. We can let the Court know that we have our mediator, that we’re working so very hard to get the date/time set, that we have clients in California working hard to line up their calendars, etc. No problem.”
We filed the Notice of Selection of Mediator and advised the Court that we will advise immediately once we had the date and time set. That had to be fine, right? WRONG! Later that evening at approximately 8 pm on a Friday night, I see an Order striking our notice and scolding both parties for failure to comply with the Court’s Order. It wasn’t my fault that we couldn’t comply, but deep down I still knew I was wrong for greenlighting the path we took. We should have moved for an extension rather than taking matters into our own hands.
Was I happy to get that Order? Definitely not. Do I think it was necessary? Probably not. Do I understand why it was entered? Sure. The court needs to make sure the attorneys are aware of who is in charge. If we were permitted to slide on that issue, where is the line drawn then? Would it be ok to send in the pre-trial stipulation late? Would it be ok not to mark exhibits the way the court wants them marked?
Follow court orders, folks!!