Anatomy of Bad Lawyering – Part IV

ANATOMY OF BAD LAWYERING-PART IV

 

anatomy of bad lawyering

Part III ended with a review of the error made by Acme in failing to simply move to consolidate the 2 co-existing  matters.

RECAP:  Smith sued Acme for unpaid commissions.  Acme sued Smith for breach of his employment agreement.  Acme filed and served the first complaint.  Smith, instead of simply answering the complaint, filed a separate complaint.  Acme, instead of moving to consolidate the two actions, filed a motion to dismiss Smith’s complaint- a motion that was doomed to failure.  The spreadsheet showing the course of the 2 competing actions is shown here: Exhibit B – Spreadsheet. The spreadsheet is divided- left side/right side, into the 2 different actions: Acme v. Smith; Smith v. Acme (“v.” means “versus”).  The first name listed signified the plaintiff; the second name is the defendant.

LITIGATION IS NOT FAIR

Unfortunately, the manner in which lawsuits are conducted is not particularly fair.  In many jurisdictions, including New York, procedure is more important than substance.  For any one of a number of (unjustifiable) reasons, the first thing a court will look for, is errors in procedure, sometimes no matter how minor.

WHAT DO YOU MEAN BY PROCEDURE?

The New York Civil Practice Law and Rules (“CPLR”) sets out the “rules” under which court actions take place.  It sets time limits, what can and cannot be filed with the court, methods of filing, what types of papers can be filed, what papers should look like, and a myriad other rules.  The rules are intended to “level the playing field” so that each side knows what to expect.

However, the CPLR is the first, and very powerful weapon in taking control of litigation.  Woe is to the attorney does not have a firm grasp on the provisions of the CPLR.

Acme’s motion to dismiss was filed on 7/15/13.  The result: the court was so confused between the 2 lawsuits, that rather than simply ruling against the motion (“denying” the motion), Acme’s case was dismissed! See Exhibit B 11/7/13: Exhibit B – Spreadsheet

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