zzlp: ask a lawyer

[superrific]

This is a practice question so not something I really know.

I just lost a motion I didn't even know about. I was working on letting the court know it was never served on me, when my lawyer emailed me to say that they actually did get the motion in the mail. It's just that they haven't checked their US mail since May 2024.

To justify it, they say they are "a paperless office." Is that a thing, anywhere? I don't even know what would fucking mean in a world in which service by mail is legal and indeed preferred.

I'm thinking about asking for a big chunk of change to be refunded or I will sue and contact the disciplinary board. Any thoughts?

 

[SnoopRob]

IANAL, but...

Your lawyer fucked up in a major way. You should certainly expect your lawyer to do everything they can to make it right at no expense. And options such a refund or suit should be on the table, as is contacting the disciplinary board.

But I would seek them remedying the effects of the motion at their cost, while admitting fault to the court, as the starting point. If they can't/won't do that, then I'd start with other possibly remedies.

 

[superrific]

IANAL, but...

Your lawyer fucked up in a major way. You should certainly expect your lawyer to do everything they can to make it right at no expense. And options such a refund or suit should be on the table, as is contacting the disciplinary board.

But I would seek them remedying the effects of the motion at their cost, while admitting fault to the court, as the starting point. If they can't/won't do that, then I'd start with other possibly remedies.

I'm going to do it myself. Their work was shoddy all along, and now this. I can't trust them to set a dinner table. People ask me, why don't you like to hire lawyers. This is why. This is the third attorney who has fucked me over in basic ways. I paid 450/hr for this bullshit.

 

[TangledUpInBlue06]

IANAL, but...

Your lawyer fucked up in a major way. You should certainly expect your lawyer to do everything they can to make it right at no expense. And options such a refund or suit should be on the table, as is contacting the disciplinary board.

But I would seek them remedying the effects of the motion at their cost, while admitting fault to the court, as the starting point. If they can't/won't do that, then I'd start with other possibly remedies.

Yeah, this. You shouldn't even have to ask for a refund. They should be sweating a complaint (Rule 1.3? This seems like the opposite of diligence) and doing what they can to head it off at the pass.

 

[rodoheel]

Unless the rules of the jurisdiction in question somehow provide (1) that service cannot be effected by regular US Mail, or (2) allow for opt-out from US Mail service (and your counsel properly exercised that right) - both of which would be essentially novel concepts to me - then that sounds like a potential malpractice claim, plain and simple, if the loss of the motion materially prejudiced your rights. Definitely not acceptable; and damn sure I would be asking for a refund or some other consideration from them.

Depending on what the result of the motion is, you may be able to seek relief from it based on your counsel's inattention/negligence (presumably having hired new counsel who would file such a motion on your behalf) but often the negligence of counsel is not a basis for the court to find good cause for relief from an order or judgment (usually framed as "excusable neglect").

 

[Calheel]

This is a practice question so not something I really know.

I just lost a motion I didn't even know about. I was working on letting the court know it was never served on me, when my lawyer emailed me to say that they actually did get the motion in the mail. It's just that they haven't checked their US mail since May 2024.

To justify it, they say they are "a paperless office." Is that a thing, anywhere? I don't even know what would fucking mean in a world in which service by mail is legal and indeed preferred.

I'm thinking about asking for a big chunk of change to be refunded or I will sue and contact the disciplinary board. Any thoughts?

I hate being a client. I am probably a terrible client because of that.

That said, in California, you can require opposing counsel to serve everything electronically (and of course, that is already required in federal court). The only exception to that rule is when you are dealing with someone representing himself.

But there are still some courts that refuse to play along and still send everything by mail.

I can't imagine that even a "paperless" office would fail to check its mail for over a year. That sounds like per se malpractice.

 

[superrific]

I hate being a client. I am probably a terrible client because of that.

That said, in California, you can require opposing counsel to serve everything electronically (and of course, that is already required in federal court). The only exception to that rule is when you are dealing with someone representing himself.

But there are still some courts that refuse to play along and still send everything by mail.

I can't imagine that even a "paperless" office would fail to check its mail for over a year. That sounds like per se malpractice.

They are blaming the post office now. Saying they check regularly but the post office was withholding. It is impossible to believe that in all that time they never noticed that materials had not been showing up. I also don't know if I should believe them. Sounds like dog eating homework.

Then they blamed me for getting angry about this and demanded an apology. I was unsure whether it was worth my time to file with the disciplinary committee but they have now made that more or less non-optional.

 

[superrific]

Now the firm is blaming me, saying that I could have gotten a copy of the motion myself. How is that my job?

This dumbass woman has made an enemy. Blaming the client when the firm doesn't check its mail is such a weird take.

 

[SnoopRob]

I hope you have their excuse of not checking their mail for a year in writing.

If not, I would be doing everything possible to communicate with them by email to get it in writing.

 

[Zoo_View]

I'm going to do it myself. Their work was shoddy all along, and now this. I can't trust them to set a dinner table. People ask me, why don't you like to hire lawyers. This is why. This is the third attorney who has fucked me over in basic ways. I paid 450/hr for this bullshit.

You should hire another attorney.

You’re a smart guy, a really smart guy. That likely makes you about the WORST person to be your own attorney.

Again, hire an attorney. Make sure he/she/they check the mail daily.

 

[superrific]

I hope you have their excuse of not checking their mail for a year in writing.

If not, I would be doing everything possible to communicate with them by email to get it in writing.

Of course I do. They volunteered it.

They are also now saying that, by not reaching out to the opposing counsel and requesting a copy of the motion, I was engaged in an intentional act to avoid service. This is fucking unreal. To be clear: the burden of service is on the one filing the motion. I am entirely within my rights to rely on the requirement of service.

 

[NYCBlueBlood]

Of course I do. They volunteered it.

They are also now saying that, by not reaching out to the opposing counsel and requesting a copy of the motion, I was engaged in an intentional act to avoid service. This is fucking unreal. To be clear: the burden of service is on the one filing the motion. I am entirely within my rights to rely on the requirement of service.

I cannot imagine any scenario where you would be expected to assume a legal practice does not check their mail...

 

[superrific]

I cannot imagine any scenario where you would be expected to assume a legal practice does not check their mail...

Literally her words from someone purportedly my attorney:

"Your refusal to obtain a copy from [opposing counsel] was an intentional act to avoid service." This was her second version of the story. Here's the first:

"I believe you could’ve gotten a copy of the motion from the court… if you were interested in actually being served. Isn’t that accurate?"

I don't understand why she thinks I would be interested in being served. WTF? The idea that it's my job to get a copy from the court -- why didn't SHE get a copy from the court if she was so sure it had been filed.

There are other issues as well, including her accusation that I was trying to disavow sworn testimony when the whole dispute was something that happened during closing arguments and thus there was no testimony involved.

This just makes me so fucking mad.

 

[TangledUpInBlue06]

If not, I would be doing everything possible to communicate with them by email to get it in writing.

Super, you probably know this, but anger clouds knowledge sometimes. If they you speak with them on the phone, take contemporaneous notes. And consider emailing them after any conversation with your understanding of what was said/discussed.

 

[SnoopRob]

Of course I do. They volunteered it.

They are also now saying that, by not reaching out to the opposing counsel and requesting a copy of the motion, I was engaged in an intentional act to avoid service. This is fucking unreal. To be clear: the burden of service is on the one filing the motion. I am entirely within my rights to rely on the requirement of service.

Did you know or have reason to believe the motion that was not received had been filed?

 

[superrific]

Super, you probably know this, but anger clouds knowledge sometimes. If they you speak with them on the phone, take contemporaneous notes. And consider emailing them after any conversation with your understanding of what was said/discussed.

I'm not speaking to them. Written record only.

 

[superrific]

Did you know or have reason to believe the motion that was not received had been filed?

There had been an entry in some sort of register or motions or something like that. I don't know that granular shit. But service is required for the motion to be valid. There have been instances in the litigation where motions were preliminarily filed but never served or acted upon.

Either way, serving me is opposing counsel's job. And let's look at things a bit starkly. If you were reading the situation, would you assume:

A. opposing counsel decided not to serve the motion (perhaps because my ex- didn't pay him; she's on her fifth lawyer for that reason); or
B. My lawyers don't check the mail and the motion would be sitting in a mailbox for three weeks.

 

[SnoopRob]

There had been an entry in some sort of register or motions or something like that. I don't know that granular shit. But service is required for the motion to be valid. There have been instances in the litigation where motions were preliminarily filed but never served or acted upon.

Either way, serving me is opposing counsel's job. And let's look at things a bit starkly. If you were reading the situation, would you assume:

A. opposing counsel decided not to serve the motion (perhaps because my ex- didn't pay him; she's on her fifth lawyer for that reason); or
B. My lawyers don't check the mail and the motion would be sitting in a mailbox for three weeks.

I think that the difference here may be between your expectations as someone who doesn't practice law and those of a lawyer who does.

You're looking at the process as a series of rules, much like one would with constitutional law, and seeing avoidance of service as a "win" for your case. Your lawyer, who is accustomed to serving and being served motions as commonplace, sees them more like mere steps in a process and that one shouldn't count on service of a motion - or lack thereof - as something that determines cases (except in very outlier cases).

Now, that doesn't excuse them not checking their mail nor does it excuse them not seeking out the filing of the motion, if they viewed service as a routine matter.

As I look at your situation, I would both assume that a law office would check their mail regularly and assume that lack of receipt of an expected motion did not mean that it wasn't being filed, instead I would use available info to determine if it had been or not. But your lawyer did neither of those things.

I am curious, why were you working on letting the court know that you hadn't been served with the motion rather than your lawyer working on that task? That's something that, in my brief experiences of working with lawyers, I would let them take the lead on and I would merely provide info to them when needed/requested (such as letting them know if/when I'd been served).

 

[superrific]

I am curious, why were you working on letting the court know that you hadn't been served with the motion rather than your lawyer working on that task? That's something that, in my brief experiences of working with lawyers, I would let them take the lead on and I would merely provide info to them when needed/requested (such as letting them know if/when I'd been served).

I'm not sure I understand the question. I was not doing that. My lawyer expected me to, apparently.

 

[SnoopRob]

I'm not sure I understand the question. I was not doing that. My lawyer expected me to, apparently.

You said in your opening post: "I was working on letting the court know [the motion] was never served on me [...]"

What, exactly, were you doing so that the court would know you'd not been served?