One of the both good and bad things about being like me -- a person who still keeps his hands (and head) in the courtroom, but without an actual staff or law practice -- is that you're forced to do yourself all the menial tasks that are associated with being a lawyer; e.g., reserving court dates, arranging service, etc.
It's pretty obvious what the bad part is about that role; namely, it's both totally boring and a pain in the arse. But the silver lining -- the good part -- is that you're more likely not to make a significant mistake; or, if you do, you've got utterly no one to blame but yourself.
Those thoughts came to mind when I read this case. Which, at least in part, is about the danger of delegating to someone else things that you should do -- or at least actively oversee -- yourself.
The facts are pretty simple. Defendants want to file an anti-SLAPP motion to dismiss plaintiff's complaint. So they write the motion and, as is typical, ask their paralegal to set the motion for hearing on the first available date. So the paralegal calls the clerk and is told that the first available date is January 31, 2005. So counsel for defendants files and serves their anti-SLAPP motion on November 24, 2004 -- prior to their answer -- and sets the hearing date for January 31, 2005. Pretty routine, huh?
Except, as we all know, anti-SLAPP motions have to be heard within 30 days of service of the motion. So the trial court denies the motion as untimely. Defendants respond that their motion was timely because it their selected hearing date was the first available date, and hence falls within the exception that authorizes a later hearind date for anti-SLAPP motions when the docket conditions so require. But Justice Robie agrees with the trial court, and (rightly) holds that this isn't the case. Just because the clerk tells you -- as they often do -- that X is the "first available date" doesn't mean that the docket conditions require such a date. You have got to do more than that. And, because defendants didn't, their motion was properly denied.
Justice Robie's opinion is both a good one and also gives eminently practical advice. He notes that defendants could have done a number of different things in order to get their motion heard in a timely fashion, or (in the alternative) to demonstrate that the "docket conditions" of the court would not allow an earlier hearing. They could (and should) have moved ex parte for a hearing date earlier than January 31, 2005. If such a ex parte request had been granted, problem solved; if denied, that fact would probably have established that docket conditions did in fact not allow an earlier date. Alternately, they could have filed, but not served, the motion, which (again) would have solve the problem. Or, equally efficaciously, have filed and served the motion after their answer, which would still have been within the 60-day period permitted for such a filing. Or defendants could have planned ahead and reserved a hearing date prior to the actual day they filed the motion.
Defendants had plenty of options, and had counsel thought about it, the resulting problem could easily have been avoided. But, instead, they relied upon their paralegal, and upon the "usual" way of doing things. That's often a problem. It certainly was here.
Be more careful in your work. You don't want to blow an anti-SLAPP deadline -- a critical pretrial motion -- due entirely to following your "usual" routine. That's the lesson for today.