Plaintiff’s Last Dance: The 1st Hearing

The first post in this series left off just after Partner 1 admitted his client was dead and just before the hearing on the motion to compel discovery responses from what I had just learned was a dead man.  Plaintiff never filed an opposition to the motion to compel, yet when I entered the courtroom a lawyer was already sitting at plaintiff’s table.  It was not Partner 1.  I learned it was an associate who had been practicing a grand total of 14 months.  As far as I knew, he had no involvement in the case to that moment.  I tried to suppress a Cheshire Cat grin.



When the judge took the bench and appearances were entered, it was immediately apparent the judge knew there was blood in the water.  The judge commented no opposition was filed, but a review of the docket yesterday instead found a suggestion of death indicating the Plaintiff died May 19, before this lawsuit was even filed.  The judge then began circling Associate like a shark waiting for a kill.  Are you the attorney primarily responsible for this file?  Associate had only 14 months experience but knew enough to swiftly say no.  What involvement have you had in this case?  He admitted none, other than being directed to appear for the hearing.  Where is Partner 1 right now?  Associate stated Partner 1 had a conflicting state court hearing. 

The judge then led Associate through each of the multiple signature blocks in various pleadings and discovery responses and had him identify each signature.  He did as directed, confirmed none were his, and that the signatures all belonged to Partner 1.  At the time, I thought the judge was simultaneously disappointed and relieved that Associate had no role in the case.  Perhaps it was like a hangman who has prepared the gallows, only to be informed of a stay of execution. 

Associate was spared, but was given homework.  The judge stated the motion to compel would be denied because the court can’t compel discovery from a dead man.[1]  Instead, an order to show cause would issue and be set for a hearing.  Associate’s homework was to inform Partner 1 AND Partner 2 that they would be both, personally appearing at the next hearing.  As we exited the courtroom later, I suggested to Associate that he find some other place to be when that hearing occurred.

The signature blocks were important.

Why did the judge have Associate identify the signatures?  The papers Partner 1 signed were problematic.  Plaintiff died on May 19.  The complaint was filed on June 7 (19 days later) and alleged “[t]hat at all times relevant to these proceedings, Plaintiff … was and is a resident of Clark County, Nevada.”  As a result of his fall, “Plaintiff suffered severe and debilitating injuries to his head, neck, back, and hips, among others, all or some of which conditions may be permanent or disabling in nature….”  The complaint also alleged Plaintiff “was required, and will be required in the future, to incur expenses for medical care and treatment and costs incidental thereto….”  As a result, “[i]t is further expected that Plaintiff will be forced to endure future physical and emotional pain associated with his continued medical treatment, recuperation, physical therapy and limitations associated with his injuries into the foreseeable future.”  As a result, “Plaintiff has suffered and continues to suffer a significant deterioration in his enjoyment of life and lifestyle.”  The complaint read like Plaintiff was still alive.

The unverified interrogatory responses served October 17 were also a problem because they were written in the first person.

Response to Interrogatory 3:   As I approached the soda fountain, I slipped and fell on melting ice/liquid that Defendant allowed to accumulate on the floor of its premises in a designated walking area.  As a result of the fall, I landed on my back and hit my head.

Response to Interrogatory 4:  I did not see the hazard prior to my fall.  I realized there was liquid on the floor when I noticed that my shirt was wet.

Response to Interrogatory 6: Immediately following the incident, I sustained painful injuries to my back, neck, right hip, and head.

Response to Interrogatory 8:  Other than the subject incident, I have not sustained any physical injuries or accidents in the past five (5) years.  However, I have a history of low back pain dating back to an industrial injury in 1994 that left me disabled.

Response to Interrogatory 10:  I have a history of low back pain dating back to an industrial injury in 1994 for which I have undergone multiple surgeries over the years.  The incident in 1994 caused me to medically retire and go on disability.  However, at the time of the incident, my low back pain was manageable through medication and the use of a back brace.  The subject incident caused a significant increase in pain and discomfort in my low back.

Response to Interrogatory 20:  As a result of the injuries I sustained in the subject incident, I had difficulty with the following tasks: standing, sitting, bending/kenneling down, showering, getting dressed, and household chores.

Response to Interrogatory 22:  Prior to the time period requested in this Interrogatory, I was already receiving disability and Medicare benefits stemming from an industrial injury in 1994, resulting in multiple surgeries, causing me to medically retire and go on disability.

For a dead man, Plaintiff seemed awfully alive.[2]


[1] Perhaps the funniest explanation I’ve ever heard, but I didn’t laugh.

[2] It was an unfunny version of Weekend at Bernie’s.