Keeping a Calendar

Keeping a Calendar

Judges demand respect. Part of that is a demand that attorneys show up when they are supposed to, ready to proceed. Missed deadlines and missed appointments can result in adverse rulings against a client, sanctions against the attorney, and possible disciplinary proceedings. It is incumbent on every attorney to know what the rules and statutes demand and what happens when deadlines are not met.
 
Know the Rules
 
An inmate petitioned for a writ of habeas corpus. The district court denied his petition. Under § 2107(c) and Fed. R. App. P. 4(a)(6), the district court was permitted to extend the filing period for 14 days from the day the motion to reopen was granted, but the district court gave the inmate 17 days to file his notice of appeal. The appellate court found that he had failed to file the notice of appeal timely and dismissed the appeal. The United States Supreme Court affirmed the appellate court’s holding. It found that the statute was mandatory and jurisdictional and that the appellate court lacked jurisdiction to consider the appeal. Bowles v. Russell, 127 S. Ct. 2360 (U.S. 2007).

Every state and the federal government has statutes and rules imposing constraints and time lines on filing complaints, motions, discovery requests, appeals, and responses. Statute of limitations bar the filing of a complaint after the statutory period. An attorney commits malpractice for failing to timely file a complaint.
 
Court Proceedings
 
Each state has its own statutes of limitations for different types of court actions. The time limit for filing a suit based on contract may not be the same for a suit based on a statute or tort law. Under the Erie doctrine, Erie R.R. v. Tompkins, 304 U.S. 64 (U.S. 1938), the substantive law to be followed in diversity cases is the law of the state. Statutes of limitations are usually considered substantive law, not procedural.
 
After filing a complaint, the attorney has a limited time to serve process on the defendant. In some states, service within the statutory limitation period is required. Once a party is served, the rules stipulate by when an answer must be filed.   Frequently, courts establish scheduling orders detailing dates by when discovery must be complete, when motions for summary judgment must be filed, settlement conferences, and trial dates. Failure to comply with these dates could result in orders barring the introduction of evidence, inability to present witnesses, and the inability to contest admissions of fact presented by opposing counsel.
 
In Roman v. City of Reading, 121 Fed. Appx. 955 (3d Cir. 2005), the United States Circuit Court for the Third Circuit affirmed the district court’s decision to dismiss plaintiff’s complaint because he repeatedly ignored its discovery orders and deadlines.
 
In a contractor’s case against a customer, the court held that plaintiff's responses to the disputed interrogatories and requests for production, which included multiple objections, were not served timely and, by operation of S.D. W. Va. R. 37.1(a), were waived absent good cause.  Plaintiff's objections to defendant's request for production violated S.D. W. Va. R. 37.1(a) and Fed. R. Civ. P. 26(g), 34(b) in that they were unreasonable and unwarranted by existing law.  Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., 2007 U.S. Dist. LEXIS 86422 (D. W. Va. 2007).

Administrative Proceedings
 
Times for filing claims for benefits are not always as restrictive as times for filing suit, but delay may carry consequences. Some benefits may be available at any time, but not retroactively to the date the applicant might first become entitled. For example, benefits under the Supplemental Security Income program may not be paid for any period before the date a person applies for such benefit. Other benefits, such as Social Security Disability Income, may be paid up to 12 months retroactively from the date of filing.
 
Methods of Keeping a Calendar
 
A calendar may be kept electronically or manually and probably should be done both ways. There are several electronic programs, such as Time Matters, that permit the user to set up automatic calendaring to respond to local rules. Not all attorneys have secretaries that will keep the calendar, and each attorney must take responsibility for making sure the calendar reflects what needs to be done and the date by which any action must be taken. It is important that the attorney have access to the calendar both in and out of the office. It is helpful to an attorney to have a hand-held device that can communicate with an office computer, so that dates established at a scheduling conference for discovery, hearings, and trials can be quickly loaded into the office computer. Even with all the electronic help, the attorney should keep a paper record for those times when the electric devices fail.
 
When a new litigation client comes to the office, the attorney must determine when the statute of limitations applies and so note it on the calendar.  Subsequently, when any document pertaining to that client comes into the office, if it requires a response, the response time must be entered onto the calendar. Thus, if an attorney is served with interrogatories or a motion, a properly set up electronic system will allow the attorney to enter that fact into the computer and would automatically enter onto the calendar the date by which they should be answered.  Programs such as Time Matters even permit automatic reminders.
 
The portable calendar, such as a laptop or Blackberry is necessary for conferences in the courthouse when schedules are set and continuances are requested. The attorney needs to know what is on her schedule in order to avoid conflicts. Having two motions hearings on the same day in the same courthouse might not be a problem, but scheduling a three-day jury trial two days before a three week complex malpractice suit will leave the attorney with insufficient time to prepare for either.
 
What Should Be Calendared
 
Anything that needs to be followed up should be included on the calendar. In addition to trial dates, hearing dates, conferences, motions, and discovery requests, the calendar should be used for all types of reminders.
 
When a set of interrogatories comes into the office, an attorney has a limited number of days to file a response. During that time, the attorney must contact the client to obtain the requested information, prepare the answers, give the client an opportunity to review the answers for accuracy, and the file the response. Having follow-up dates and reminders on the calendar can assure the attorney that all these steps are taken timely.
 
There are times when several months can go by where the attorney does not need to interact with the client. It is good practice to make monthly contact with the client during that time, letting the client know what is happening with the case, reminding the client of upcoming dates, and asking if there are any changes the attorney should know about.
 
Keeping a calendar can prove invaluable in trying to resolve discovery disputes. When an attorney receives incomplete or absent answers to interrogatories or opposing counsel fails to respond to request for admissions or give permission for physical examinations, the attorney may be required to take steps to resolve the dispute before contacting the court for resolution or sanctions. The calendar keeps the attorney on track so that the failure to respond does not fall through the cracks.
 
Calendar Considerations
 
In scheduling activities, the attorney needs to remember all of her prior commitments and the amount of time needed for each. In the immediate days before a jury trial, the attorney needs to outline the case and determine presentation, update research, prepare voir dire, contact witnesses, and mark exhibits. Trial preparation for a two day trial may take only a day or two, but trial preparation for a complex trial will take much longer. Frequently, during the course of a trial, issues will arise that require the attorney to do extra research or investigation or file new motions. Attorneys must be careful not to schedule other activities during the anticipated length of a trial or in the few days before the trial.
 
If an attorney believes that she will not be able to meet a deadline, it is incumbent on the attorney to first notify other counsel, attempt to get an agreement for additional time, and file a request for additional time with the court. Requests for extensions of time must be filed before the due date. Motions for extension of time should explain to the court the reason for the delay and whether the motion is opposed. Courts usually try to accommodate the first request for an extension.
 
It is courteous and usually most expeditious to contact opposing counsel before scheduling depositions, whether it is a deposition of a party or a witness. Where the deposition to be taken is of an expert, contact with the expert to set up a time in advance of the notice of deposition is necessary.
 
While it is always preferable to have a live witness at a trial, there are times when the witness will not be available at the time needed. Where there is little flexibility in scheduling witnesses and there is a possibility that an expert will not be available when needed, it is wise for the attorney to take a videotape deposition for the purposes of trial to present to the jury.
 
Adverse Consequences
 
Failure to keep and follow a calendar with important dates can result in adverse consequences to both the client and the attorney. An attorney sued his landlord for breach of contract. The landlord responded that the attorney had failed to pay rent. The attorney failed to attend a scheduling conference and continued to postpone depositions. The court disbarred the attorney based on its finding that the attorney had willfully and unreasonably refused to attend his deposition, and willfully and knowingly made material misrepresentations about his reasons for not attending his deposition, Sprauve v. Mastromonico, 86 F. Supp. 2d 519 (D.V.I. 1999)..
 
In In re Mekler, 669 A.2d 655, 658 (Del. 1995)  an attorney was suspended from the practice of law for one year for, among other things, findings of falsifying the attorney's signature by a law clerk on pleadings and affidavits, apparently without the attorney's knowledge; disrespect for clients and judges in scheduling; disruption of tribunals; lack of diligence; failure to supervise employees; delays; confusion; and a woeful lack of communication. 
 
Under USCS Fed Rules Civ Proc R 36 and similar state rules, one party may serve a Request for Admissions on the other party. Unless the matter is denied or authenticity of a document is denied within the given time frame, usually 30 days, the fact or authenticity of the document is established for the pending action. A deemed admission may be withdrawn only with permission of the court. While the purpose of the rule is to narrow the issues to be decided at trial, it can trap a client where the client or attorney is not diligent in responding. Admissions made under Rule 36, even default admissions, can serve as the factual predicate for summary judgment.
 
Conclusion
 
The calendar is the attorney’s lifeline to success. By keeping and following the calendar, the attorney will be able to budget her time and can avoid potential problems.