Motion Practice Again

                               
There is some evidence that attorneys may not be following the rules very thoroughly or faithfully. It is also bought to my attention that periodically attorneys can become so embroiled in their efforts at zealous representation that they lose focus on the need for patience and professionalism. These thoughts crystallized recently when reviewing some motion orders. 
 
In the first instance, motions had been filed and a hearing sought. The request for a hearing was not clear, but it was stated. The lawyers had not complied with various rules. The judge elected to provide reminders of both professionalism and fundamental trial practice proficiency: when in doubt, essentially, follow the rules. 
 
The lawyers did not communicate. One motion was filed without any recitation of an attempt to discuss the matter with opposing counsel. Other motions contained statements vaguely alluding to communication, but not complying with the rules. There is a reason that counsel are compelled to speak with each other before motions are filed. Speakingwith each other builds relationship; conversation is a path toward understanding and thereby perhaps compromise. The judge should be brought into a situation only when needed, as the last resort not the first. 
 
A couple of years ago, I penned It is about Communication. The point of that post is that "conferring," as the rules require, is about an interactive exchange. In the instance being described here, counsel forwarded a draft copy of various motions to the opposing counsel. The effort was to inform, to notify, not to confer. The rules specifically require conferring:
 "Except for motions to dismiss for lack of prosecution, prior to filing any motion, the movant shall personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion. All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of record and shall state whether any party has an objection to the motion. Any motion filed without this certification shall be summarily denied.” Rule 60Q-6.115(2). (Emphasis added).
To what does this rule apply? It applies to "any motion." Sure, but which motions? Are there no exceptions? Certainly there is an exception. No conferring is necessary for a Motion to Dismiss for Lack of Prosecution; that is stated in the rule. When one thing is stated in the law, that implies the exclusion of all other things. Thus, listing one motion that does not require conferring implies that any other motion requires it. This legal maxim is referred to in Latin: inclusio unis est exclusio alterius. See Thayer v. State, 335 So. 2d 815 (Fla. 1976). When must the parties or lawyers confer? Always, except the one stated exception. 
 
Is a notification sufficient? In other words, is it good enough to tell your opponent that you will file a motion? It is not. The rule does not require that you "notify" or "warn" opposing parties or counsel before filing. It says that you are to "confer," and do so "personally." Personally means that you will do this yourself. It does not mean that you had your secretary, assistant, paralegal, or associate have a conversation. It means you have a conversation. This language is clear and unambiguous.
 
“Confer” means “to compare views or take counsel, Consult.” Sending a note, text, or email that says "I am filing this" is instead a notification. "Notify” means "to give notice of or report the occurrence of.” Notifying and conferring are not synonyms. They do not mean the same thing. The rule requires a conversation, an exchange of ideas, an interaction. The rule is not satisfied by a notification, such as "I am filing this." Possibly, some judges are not enforcing this "confer" requirement and that may lead to development and persistence of bad practice.
 
In this litigation system, motions should be filed after the parties or attorneys have spoken; after they have tried to work through their differences, after they are thus certain that they are in a disagreement and not a misunderstanding. And, most motions will be disposed of without a hearing. The rules say so:
60Q-6.115(4): " If the motion has not been amicably resolved, the movant shall file the motion. When time allows, the other parties may, within 15 days of service of the written motion, file a response in opposition. Written motions may be ruled on by the judge before the expiration of the response period and provide for filing an objection to the order within 10 days of the order, or the judge shall rule after the response is filed or after the response period has expired, based on the motion, together with any supporting or opposing memoranda. The judge shall not hold hearings on motions except inexceptional circumstances and for good cause shown in the motion or response.” (Emphasis added).
The norm is for motions to be decided without hearing. Thus, it is incumbent upon the filing party or attorney to explain why a hearing is necessary; explain the reason for this being an exception "in the motion." The party opposing that motion can, of course, express such a need even if the filing party does not. The circumstances or good cause may be plead and explained in the "response." It is not sufficient to say a hearing is desired, preferred or requested. The requirement is to show "exceptional circumstances" and "good cause" for a hearing. It would be antithetical to expect that a judge might somehow sense such circumstance or cause without being told. In this regard also, some judges not holding parties to this standard may be encouraging poor pleading. 
 
The response, as a side note, is the opposing party or attorney's opportunity to explain to the judge what the disagreement or conflict is. The response should address the substantive issue, not merely parrot irrelevant or restated facts. The response should be persuasive, take definitive positions, and explain how and why the motion should not be granted. The motion and response are effectively, likely, the only chance a party has to tell its perspective, cite authority, and seek a ruling in its favor. It is critical that each is self-contained, complete, and detailed. It is helpful when the filing party cites authority (rules, statutes, court decisions). Helpful, but for some reason too rare. 
 
These definitive positions would (seemingly) be the same reasons that the opposing counsel would (should) have raised when that all-important personal "conversation" occurred before the filing. If those arguments and authorities are voiced, if that conversation occurs, then perhaps the filing party will simply decline to file the motion. Alternatively, the parties in conversation might also reach some accord or compromise through that conversation and sharing of perspectives. 
 
In the second recent instance, counsel appeared for a hearing on a variety of motions. The most pressing related to discovery. The attorneys there appear to have become frustrated or even angry with each other. They had ceased to speak to each other and instead devolved to apparently speaking at each other, through assistants or devices (whether email, texting, or staff). They had effectively ceased conversation, the exchange of ideas. They had retreated into confrontation, no longer willing or able to discuss or listen.
 
Too often, disputes about discovery (and other pretrial matters) can become about cooperation. When one perceives an opponent as no longer being cooperative, then one may personally likewise shy from cooperation. When that cycle begins, it may continue in a downward cycle of slight (perceived or real) followed by slight. Feelings become hurt, nerves become raw, and relationships suffer. The professional in us becomes subsumed in the baser human emotions that we all have. Feelings are hurt and emotions become primary. The result on the professional relationship and interaction required for litigation is troubling. 
 
In this instance, the assigned judge elected to hold a hearing. The various motions filed at (yes, "at") each party were discussed. Feelings and conclusions were vented. A cathartic relief was hopefully provided. A professionalism reminder from the judge was hopefully effective. The judge entered an order disposing of the various motions and reminding the attorneys of their professionalism. Professionalism not in the abstract, but in the here and now. A reminder of how professional those particular attorneys are, are known to be, and a perhaps providing a path back to where they had been before their emotions momentarily got the better of them. (Note that we will all have momentary lapses. That is not failure, it is just a chance to regroup and restart).
 
The vast majority of workers' compensation claims in Florida are handled administratively. A small portion ever become litigated. There are fewer still that eventually get to a trial. Thus, it is in the motion practice that judges engage most often with ongoing litigation. To assure that involvement is efficient and effective, it is incumbent upon attorneys and parties to follow the rules, to remain professional, and to maintain focus on the real goal, the issues, claims, and defenses that are on the table for decision or resolution. It is critical for attorneys to find some way to work with, communicate with, their opponents. This is not as easy as it can sound, but it is critical to success. And, it is required by the rules whether they are enforced or not. 

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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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