Wednesday, December 08, 2010

Showing cause -- or -- How Curmudgeon outsmarted himself and almost got sanctioned by the 7th Circuit

I wrote in mid-November about our family encounters with the norovirus and (probably) food poisoning as well. Some of that must be recounted as backstory here. (If you have a cast-iron stomach and insatiable curiosity, you can read those adventures in detail here.)

Life never throws you a curve when two or more would be more interesting. We'd gotten Younger Daughter home from the hospital for the weekend (she's the one who had food poisoning, we think) and we provided TLC and movies on DVD and chicken soup and that sort of thing through until Sunday night when Middle Son took her back to her dorm. He had no sooner left than Youngest Son began complaining of ill health.

He'd avoided his sister over the weekend, mainly because she was on the couch in the den that he considers his exclusive domain. So he went out Friday night and Saturday night and somewhere in the course of his travels picked up the delightful norovirus.

As Youngest Son began demonstrating in earnest as Sunday evening deepened into Sunday night.

I had to go to work next day. I was told I'd be getting a check -- a small one, in comparison to what I owe -- but one that would, inter alia, repair relations between my Long Suffering Spouse and the computer guru at her school. He had done me a favor -- a big one -- and I hadn't paid him. And he was increasingly unhappy.

Thus it was that I didn't protest too much when, at about 2:00am Monday morning, Long Suffering Spouse decided (a) Youngest Son must go to the ER and (b) she would take him on her own. I was to stay behind and prepare for the trials of the day to come.

As usual, I was woefully under-prepared.

It started when I opened the weekend mail. There was an envelope from the Clerk of the Seventh Circuit Court of Appeals. I have an appeal pending in that court.

It's not that I don't like the Seventh Circuit. Courts are institutions that command respect. Liking or not liking is irrelevant. But I had an appeal there last year, too, and my client stiffed me for about $16,000 in fees and costs. And in the course of this experience I also got hammered for $4,400 in sanctions for filing a motion that the court deemed unwise. I was concerned about the consequences of filing it -- before I filed it -- but I had access to one of the leading lights of the Illinois bar on legal ethics (he was also representing my client, but in another matter) and he seemed to think my motion was just a great idea. Looking back, I think he must have thought it was great that my name was on it and not his.

But you may well imagine, from this brief digression, that I am wary of the Seventh Circuit Court of Appeals. I do a lot of appeals, but nearly always in state courts. The rules are different in federal practice. Lots of things are different in federal practice.

One way in which the federal practice differs from the state practice is that the feds are much more technologically inclined. So things are filed in the District Court electronically. Dockets in both the District Court and Court of Appeals are on line -- and, unlike, say, the electronic docket provided by the Clerk of the Circuit Court of Cook County, the federal dockets are accurate. Appeals in both the state and federal systems are begun in the trial courts. So when I filed this latest appeal, I'd received, from the District Court, in my email, confirmations and copies of the case initiation papers issued by the Seventh Circuit.

I was paying attention to these.

Or I thought I was, anyway. Remember, I was -- I am -- wary of the Seventh Circuit. (This client, though, won't stiff me on my fee. Maybe. I think....)

So -- when I got a big fat envelope from the Clerk of the Seventh Circuit containing a copy of my Notice of Appeal and the other initiating papers issued by that court, I pitched it in the recycling. I had all this stuff didn't I? Why did I need duplicates? This was somewhere around mid-October.

Now, in the second week of November, when I saw the little envelope from the Seventh Circuit, I was not overly concerned. It might be a briefing schedule, I thought, or it might be a diversion to the court's settlement attorneys. I'm really hoping for that in this case.

But, alas, I was wrong on both counts.

The Seventh Circuit had entered an order on me, personally, to show cause why I should not be held in contempt for failing to respond to its October orders.

Orders? What orders?

My best guess -- looking back -- is that somewhere in that batch of paper I'd pitched a few weeks before there were copies of a couple of orders asking me to amplify certain aspects of my Docketing Statement. I wasn't looking for them because (I thought) I'd gotten everything in my email. I pulled the case up on Pacer (using the Seventh Circuit website this time) and, sure enough, found the orders in question.

There followed the awkward telephone calls and emails to co-counsel and the formulation of a plan. I would respond to the court's show cause order, of course, but (since the court had given me until Friday) I would also respond to the substantive orders dating back to October and present these along with a motion for leave to file instanter. I looked up the cases, I drafted responses, I prepared my motion, I prepared a supplemental Affidavit to the extent that I could. However, I still needed information from the client that my co-counsel (who represents the client on a regular basis) would have to obtain.

I sent everything off to co-counsel on Tuesday evening -- and by Wednesday morning was retching my own guts out with the norovirus.

One of my co-counsels decided how the affidavit would be best completed and got the client's president to sign his name. Another of my co-counsels signed his name to my response to the show cause order.

I got back into work the following Monday and soon received another envelope from the Seventh Circuit. My co-counsel had misinterpreted my emails regarding the completion of the affidavit and had provided y when the court wanted x. I had to fix that.

When I brought in my revised and supplemental, new and improved amended response, complete with new (but as yet unsigned affidavit -- that's another story) I asked the Clerk about the response to the show cause order, explaining how it happened that someone else had signed his name to my writ of rachmones. He jumped away from the counter. When I assured him that, by now, I was surely no longer contagious, he went and spoke with his supervisor.

The bottom line was I didn't have to re-sign anything and I haven't been sanctioned.


But I remain wary. And now, of course, I know to examine carefully the contents of all envelopes, even when I 'know' what's inside them....

1 comment:

shell said...

Welcome back! Glad you are feeling better and that you were not sanctioned by the 7th circuit!

Here's to a better year next year.