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Federal Bar Update: Show up and pay attention to court matters

September 21, 2016

FedBarMaley-sigTrial lawyers are held to high standards, appropriately so. The stakes are often high, ranging from constitutional rights, civil liberties, federal statutory claims, intellectual property disputes to high-dollar diversity cases. And the federal courts are, with very few exceptions, extraordinarily busy, with labor-intensive caseloads, long-pending judicial vacancies, and even an approved temporary judgeship for the Southern District of Indiana that has never been authorized. It is thus not surprising that when federal practitioners fall short on the basics — such as punctuality and even simply showing up for scheduled matters — the courts’ patience wears thin.

In the Northern and Southern Districts of Indiana, from time to time the federal bench has found it necessary to comment on deficient practitioner performance. A recent example is a show cause order in Lawrence v. Person, 1:15-cv-01741 (Aug. 1, 2016) (Baker, M.J.), which also serves as a reminder of some basic principles in this age of phone conferences.

The order itself is brief, and is better quoted than paraphrased. The court wrote:

“The undersigned has witnessed a disturbing trend. With increased frequency, counsel have been failing to appear for scheduled conferences, particularly telephonic status conferences. Alarmingly, in a two-day stretch last week, six lawyers failed to appear telephonically, and one failed to appear in person. While most counsel appear as ordered, non-appearances are occurring far too often. In addition, it is not uncommon for counsel appearing telephonically to be multi-tasking other non-case-related tasks during the conference (i.e., driving a car or, in one notable instance, driving a golf ball). Even those lawyers who call in or show up on time often have failed to properly read the order setting the conference, and as a result are not adequately prepared. This behavior wastes everyone’s time and adds delay and expense to litigation that already is notoriously protracted and costly. The instant case is one example.”

“This case was set for a July 29 telephonic conference to address the status of the case and settlement. Plaintiff’s counsel appeared as ordered, but Defendant’s counsel failed to appear. After waiting for counsel to call in, Court staff ultimately called defense counsel’s law office and, after some additional delay, essentially was told counsel was not available. Thereafter, the Court conducted the conference with only Plaintiff’s counsel, which of course made the conference largely unproductive. Sometime after the conference concluded, one of Defendant’s two lawyers called chambers and apologized to Court staff for missing the conference. As a result of the missed conference, the undersigned drafted the instant show cause order, which requires a response from Defendant, then a ruling from the Court. All these entries will need to be drafted, filed, docketed, and presumably reviewed by counsel and their clients, resulting in wasted time and needless delay and expense.”

The court concluded, “It is not the intention of the undersigned to implement a standing order governing the requirements for telephonic status conferences, nor otherwise be overly heavy handed in dealing with lawyers who, understandably, are busy and under pressure from many fronts. Rather, this show cause order is intended to highlight the disturbing trend previously discussed, and to remind counsel of their duty to be competent, prompt, and diligent. See Ind. Rules of Prof’l Conduct pmbl. ¶ 4 (2016) (‘In all professional functions a lawyer should be competent, prompt, and diligent.’). Counsel who fail to appear for Court proceedings (either telephonically or otherwise), or who appear telephonically but are obviously distracted or otherwise unable to fully engage in the conference, may be denied the convenience of future telephonic appearances. If counsel are located out of the district, they also may be required to retain local counsel. And of course, counsel who fail to carefully review and comply with Court orders may face other consequences, such as paying attorney fees needlessly incurred by other parties.”

The court ordered defendant to show cause why sanctions should not be issued. Counsel responded, apologizing and explaining a calendaring mishap. No ruling has been issued yet thereafter.

Save the date. The annual federal civil practice seminar is set for Friday, Dec. 16, in Indy from 1:30-4:45 p.m. Watch for registration information in Indiana Lawyer or www.theindianalawyer.com/events.•

John Maley — jmaley@btlaw.com — is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters and appeals. He serves as chair of the Southern District of Indiana’s Local Rules Advisory Committee and is a member of the Northern District of Indiana’s Local Rules Advisory Committee. The opinions expressed are those of the author.

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