Plaintiff’s Last Dance: The 3rd Hearing & Ruling

This is the final post of this series. Based upon the events to date, discussed in the prior posts, it seemed like this case on track for dismissal because Plaintiff died before the lawsuit was ever filed and Partner 1 had actively concealed that fact in violation of more than a few ethical obligations.

The updated briefing.

Partner’s 1 and 2 both submitted updated briefing, this time addressing every point in the order to show cause.  I then also filed a supplemental brief.  The point was to document, in excruciating detail, the misrepresentations, if not outright lies.

This time they answered some of the court’s questions.

  1. Why’d you file a complaint for a dead man that suggested he was still alive?  Partner 1 asserted he didn’t learn of the death until September 19.  But he didn’t explain why he did not file a suggestion of death upon learning of it.
  2. Why didn’t you disclose that your client died until two days before a hearing on a motion to compel discovery from a dead man?  <crickets>
  3. Why’d you file a certificate of interested parties stating there were none other than those already participating?  Partner 1 stated the death was unknown when the original certificate was filed.  He didn’t explain why he did not file an amended certificate when the death was discovered on September 19.
  4. Why’d you answer the interrogatories in the first person as though Plaintiff was alive?  Partner 1 wrote “I, along with my paralegal, have always answered Interrogatories in the first person, and did not think to treat this case any differently.”  He argued the unverified responses “were sent so that Defendant was not hamstrung and knew what Plaintiff’s responses would be.”  He didn’t explain how these responses could ever be Plaintiff’s given that Plaintiff died nearly five months before they were sent.
  5. Why’d you attempt to settle the lawsuit without apparent authority and without disclosing the client was dead?  <crickets re disclosing the death>  But Partner 1 argued settlement authority was present because, upon learning of Plaintiff’s death, he began communications with a person whom he asserted was Plaintiff’s daughter.  Partner 1 claimed Daughter “gave me settlement authority as [Plaintiff]’s only known living heir to settle his injury case for any amount I could obtain that would leave her owing nothing.”  Wrong again.  Daughter’s potential status as an heir did not confer any authority upon her.  As discussed before, “the right to bring a survival action only to the official representatives of an individual’s estate; no mention is made of a similar right extending to family members or heirs to bring a survival action independent or in lieu of the estate’s claim.”[1]  “The Nevada legislature’s decision to mention only estate representatives in § 41.100(3) leads naturally to the conclusion that the right to bring a survival action in Nevada is limited to the duly appointed representatives of a deceased’s estate.”[2] At that time Partner 1 was attempting settlement, no estate had been created or administrator appointed.  Daughter had no authority to administer a claim on the estate’s behalf.
  6. Why’d you didn’t you disclose that the client was dead during the meet and confer process before the motion to compel?  Partner 1 didn’t answer that question.  Partner 1 instead attacked me, asserting I “was already aware of Plaintiff’s death and failed to address [it] at any time prior to the Motion to Compel.  …  Defendant opted to use its knowledge of Plaintiff’s passing to its strategic advantage.”  Stated another way, Partner 1 argued it was my fault he lied because I should have called him out on his lie earlier. <resume sharpening pike>
  7. Why didn’t you respond to the motion to compel?  Partner 1 was “under the impression that this matter had been resolved….”  But the November 20 emails between us indicated my client disputed whether a settlement was reached.  They also documented how, even when directly asked if his client was still alive, Partner 1 refused to answer.  There was no settlement.  Even if the facts were present to indicate a settlement did occur, that settlement would be set aside for the same reasons as discussed in the cases my first brief cited.
  8. Why didn’t Partner 1 attend hearing one?  Partner 1 stated he was obligated to attend a state court hearing, a client’s deposition, and a workers’ compensation hearing the same day.  I confirmed through the state court’s online docket he did attend a state court hearing that morning.  It was his own motion to continue trial and re-open discovery, on an order shortening time.  The hearing minutes indicate “[u]pon inquiry by the Court regarding there not being a supplement to the rule 16.1 report for eight months, [Partner 1] stated they did not get the records and supplement them.”  Way to go… As to the supposed deposition and workers’ compensation hearing, Partner 1 provided no documentation of them. He also didn’t explain why he sent Associate to the hearing.[3]
  9. What are the number, dates, and methods of communications you had with your client between the fall and his death?  “Plaintiff maintained telephone communication with my office as needed.  We received periodic updates as to his treatment and health, as well as requests for the status of his case.”  Partner 1 relied upon an affidavit from Case Manager for support, which stated in the 15 months before the complaint was filed, “I spoke with our client …, at which time he instructed me to move forward with the case and to file a lawsuit.”  No other information was provided.  If Case Manager’s affidavit was the extent of the firm’s communication with Plaintiff, then Partner 1’s only communications with the client were 1) when they were retained; and 2) when Case Manager spoke to him 15 months before the complaint was filed.
  10. What’d you do to try to answer the written discovery?  Partner 1’s response was ambiguous.  ““It was not until September 19, when our office staff attempted to contact [Plaintiff] to obtain his discovery responses that we learned of [his] passing.”  Did it mean 1) the staff did not attempt to contact Plaintiff about the discovery responses until September 19; or 2) the staff did not learn of the death until September 19?  The next sentence didn’t resolve the ambiguity.  “After leaving several voicemail [sic] at all known telephone numbers and emergency contacts, our office staff was finally contacted by [Plaintiff]’s girlfriend … on September 19.”  Again, the sentence is ambiguous in that it does not identify who did what and when to contact Plaintiff.  I read the sentence to mean all of the activities referenced occurred on September 19.
  11. Why didn’t you respond to the meet and confer requests?  <crickets>
  12. Why’d you attempt settlement?  <crickets, although there was a partial response above>

Timeline of Events in My Brief

Based upon this factual information, I constructed a complete timeline for the court. Why? Cut/paste/head on pike.

  1. Fall occurs.
  2. One week later: Plaintiff hires Partner 1.
  3. 9 months later:  Plaintiff speaks with Paralegal and purportedly authorizes filing the lawsuit.  This was the last communication between Plaintiff and anyone with the firm.
  4. May 19 (22.5 months after fall):  Plaintiff died.
  5. June 7 (23.5 months after fall, 15 months after instructions to file suit): Partner 1 files complaint.
  6. August 4:  Defendant serves 23 interrogatories, making Plaintiff’s responses due on September 5. 
  7. August 17:  Defendant served 9 requests for production, making Plaintiff’s responses due on Tuesday, September 19.  No responses were received to interrogatories or requests for production by the deadline, nor was there a request to extend.
  8. September 19:  Partner 1 learns his client died.  He doesn’t disclose it.
  9. October 5:  I wrote to Partner 1 asking for the status of the discovery responses and asked that they be provided no later than October 12.
  10. October 6 (Friday):  Paralegal emails me and asks about potential settlement.  I responded the client was willing to discuss settlement but reiterated I needed Plaintiff’s discovery responses.  Paralegal responds with a $35,000 settlement demand.
  11. October 9 (Monday):  I respond that “I have passed this along to the client, but will still need the discovery responses by 10/12.”
  12. October 17:  Partner 1 serves interrogatory responses.  They are written in the first person, but are not verified.
  13. October 24:  Partner 1 serves responses to requests for production, but the responses are incomplete, at best.
  14. October 26:  I offer $2,500 to settle.  Paralegal counters at $30,000.
  15. October 27:  I forward the client’s response to Partner 1.  “The most we will offer now is $5,000.  Please advise PC if they reject that amount the offer is off the table and we will defend the claim.”  Partner 1 doesn’t respond.
  16. October 30, AM:  The paralegal working this file with me finds an online obituary that might belong to Plaintiff.  The information in the obituary was insufficient to confirm that the dearly departed was Plaintiff. I was faced with conflicting information.  Some information indicated Plaintiff died 19 days before the complaint was filed.  But the complaint was filed in his individual capacity.  It alleged ongoing pain, suffering, and that future medical care might be required.  The certificate of interested parties indicated there were no other parties interested in this case, but it would have had to include the estate if Plaintiff was dead.  The unverified interrogatory responses were written in the first person.  I decided the simplest and most economical method to resolve this conflicting information was to obtain verified interrogatory responses.  If Plaintiff verified the responses and a notary stated he appeared in person to execute the document, then I could be reasonably sure Plaintiff was alive and the obituary was for someone else.
  17. October 30, PM:  I email Partner 1 noting the various deficiencies to Plaintiff’s written discovery responses, including the missing verification.
  18. October 31:  I received no response to the October 30 email, so I emailed again.  I still received no response. 
  19. November 3 (Friday):  I tried to call Partner 1 concerning the discovery responses.  The first call was at 11:24 a.m.  I was told he was unavailable and was offered Paralegal.  I accepted but was then told Paralegal was on another call.  I held the line for approximately 5 minutes, but was then asked to leave a message, so I did.  My second call was at 1:30 p.m., but I was told Paralegal was at lunch.  My final call was at approximately 4:30, but I was told Paralegal had left for the day.
  20. November 6 (Monday):  I filed the motion to compel.
  21. November 20:  Paralegal replies to my October 31 email and states he has “authority to accept Defendant’s settlement offer of $5,000.”  Partner 1 was copied on the e-mail.  I responded, “that offer was last month.  I do not know that the client is willing to pay $5,000 since Plaintiff has not responded to any written discovery.”  Then I decided to let him know the game was afoot.  “Further, please confirm that [Plaintiff] is alive.  We have now located an obituary for him indicating he died May 19….”  The response contained a hyperlink to the obituary.  Partner 1 responded that there was a settlement agreement and stated if my client was “unwilling to pay the settlement offer that it offered, we will be forced to file a motion to enforce settlement.  Also, we responded to written discovery on October 17.”  He didn’t even address my question about his client.  So I replied with one sentence.  “Is your client alive?”  <crickets>
  22. December 11:  Paralegal emails me and says Partner 1 “would like to schedule a telephone conference with you regarding a few topics: the settlement, [Plaintiff]’s death, and Defendant’s Motion to Compel.  Do you have time tomorrow to speak with [Partner 1] around 2:00 p.m.?”  I agreed.
  23. December 12:  Partner 1 calls me and confirmed for the first time that Plaintiff died on May 19.  Afterwards, I filed the suggestion of death.
  24. December 14: Hearing one.
  25. January 29:  A petition to appoint an administrator for Plaintiff’s estate is filed in state court and scheduled for hearing on February 16.
  26. February 1:  Hearing two. 
  27. February 16:  An order is filed appointing a special administrator for Plaintiff’s estate.
  28. February 27:  Hearing three.

Sanctions were requested.

I ended my supplemental brief by moving for sanctions, per 28 U.S.C. § 1927. I rarely request sanctions, as they are rarely granted and don’t really move the case forward in most instances.  I thought they were merited here based upon a collection of quotes from the cases I cited about a lawyer’s duty to disclose the clients death. 

  • After a lawyer learns of the client’s death “any subsequent communication to opposing counsel with respect to the matter would be the equivalent of knowing, affirmative misrepresentation should the lawyer fail to disclose the fact that she no longer represents the previously identified client.”[4]
  • “[C]andor and honesty necessarily require disclosure of such a significant fact as the death of one’s client.  …  Standards of ethics require greater honesty, greater candor, and greater disclosure, even though it might not be in the interest of the client or his estate.”[5] 
  • “The attorney has an absolute ethical obligation to” disclose the client’s death before concluding a settlement.[6]
  • “[W]e will speak plainly: Knowingly filing a pleading on behalf of a dead person as though he or she is still alive is fraud.”[7]

This seemed to invoke 28 U.S.C. § 1927.  “Any attorney … admitted to conduct cases in any court of the United States … who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”[8]  I thought that occurred here.  I asked the court to dismiss with prejudice, but to also award my client all of its fees and costs incurred after Partner 1 learned on September 19 that Plaintiff was dead.

The third hearing.

There was a car chase scene in The Blues Brothers that ended with the Blues Brothers escaping because the Illinois State Police crashed into the Good Ole’ Boys’ tour bus.  One of the troopers approached the wrecked tour bus and told the Good Ole’ Boys something to the effect of “boys, you got some explaining to do.”  Going into the third hearing I thought we’d already passed that point.  Partner 1 had given his “explanation,” which I thought had done nothing but make the situation worse for him.  I expected the case would be dismissed.

The hearing started and my hopes were raised when this exchange occurred concerning the $5,000 nuisance settlement:

THE COURT: And they don’t have to tender even a nuisance offer if you don’t have a case or you can’t prove your case, do they?

PARTNER 1: They don’t.

THE COURT: Petty theft isn’t enough — isn’t a great defense.

I asked the court to dismiss the case for all the reasons I’d outlined and discussed.  Below is what happened:

THE COURT: I understand that, and I understand why and … I’m admonishing counsel. I’ve made them go through and completely review their processes and the file and what happened in this case, but at the end of the day they have now set up probate. There is an injured person. The injured person is now a decedent. That person has been appointed a court-authorized representative to pursue this claim on their behalf, and I’m not going to dismiss the claim because the lawyers were grossly negligent in their professional obligations. I’ve assessed them the attorney’s fees and costs that you incurred in filing the Motion to Compel. I required them to pay that out of pocket, but I cannot in good conscience dismiss a claim on behalf of someone who may have a claim because the lawyers erred and the client representative did nothing wrong.

I find that you have violated your professional responsibilities to the Court and opposing counsel, by candor to opposing counsel and by candor to the Court. And I guarantee you that if I see repetitive conduct of this nature, I will not only pursue the matter myself, but I guarantee you I will refer it to the state bar with a detailed order and backup for misconduct that I previously found. You’re young lawyers, but you know better. It is material. Hiding the fact that a client has died is not appropriate anytime, anywhere, under any circumstances. It’s not privileged; it’s materially misleading. You had a duty to speak and you did not.

<speaking to me>I know you’d rather see the case be dismissed, counsel, but I just can’t in good faith do that. The Order to Show Cause is closed with counsel being admonished. We’re adjourned.

And just like that, it was over. All of that, for nothing.

So why am I still ranting about it? 

This ruling completely shocked me and I felt betrayed.  This judge stood for what I thought was right about the practice of law.  Yet when confronted with objective facts documenting that Partner 1 had breached numerous professional obligations and flat out lied, the judge refused to pull the trigger or substantively do anything about it.

Words sometimes simply cannot fully or accurately convey the idea or emotion being described.  Words fail me here, so perhaps analogies from two old movies will help contextualize my disappointment.[9]  The first analogy is a scene from Batman Forever.  Bruce Wayne (Val Kilmer) enters the electronics division of Wayne Enterprises.  Edward Nygma (Jim Carrey) works there and is desperate to get funding for his pet project.  Nygma interrupts Wayne’s visit and pitches his project.  But when pressed for a response, Wayne denies funding.  Shocked and dejected, Nygma watches Wayne walk away and says “you were supposed to understand.”

That line entered my head shortly after leaving the hearing.  Of all the judges in Nevada, state or federal, “you were supposed to understand.”[10]  That shocked feeling is what I felt.[11]

The other analogy occurred to me much later.  A Christmas Story follows an 8 year old boy’s quest to get a BB gun for Christmas.  He gives not so subtle hints to his parents, teachers, and anyone else that will listen that all he wants is this BB gun.  But the response he gets from every single one is “you’ll shoot your eye out.”  His last great hope was going to visit Santa Claus in a department store.  Santa would help him out; no parent could corrupt Santa.  Yet when the boy tells Santa that he wants the BB gun, Santa responds “you’ll shoot your eye out, kid.”  The boy is crushed.[12]

Perhaps in expecting a different result, I was naïve as an 8 year old trying to get a BB gun from Santa. But that feeling of complete shock and dejection at the result is what I felt.[13]

So what?

“So you lost a motion, big flippin deal, why a four part post about it?” I take the professional obligations that come with a law license very seriously, in large part because that license is what puts food on my table.  Further, the bar is continually lectured about ethics and calling out unprofessional or unethical conduct when it happens.  To steal the Department of Homeland Security’s tagline, “if you see something, say something.”  Yet it rarely happens, for many reasons.  Applied to me, I saw something, even got it confirmed in writing, and then said something. 

Yet instead of doing something, the court decided the best solution was “a good talking to,” like Danny Tanner’s heart-to-heart talks with his daughters at the end of every Full House episode. Like Danny Tanner’s talks, this one made no difference whatsoever. On July 2, after the Las Vegas Law Blog linked to the first post in this series, Partner 1 emailed me to gloat about how the judge had not dismissed the case and, effectively, that he’d gotten away with it.

The entire sequence of events this series discussed was disheartening. To continue the question I recently posed, why bother?

[1] Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 370 (9th Cir. 1998).

[2] Id.

[3] No explanation was probably needed.  Sacrificial lambs are easily recognizable.

[4] Kentucky Bar Ass’n v. Geisler, 938 S.W.2d 578, 579 (Ky. 1997).

[5] Harris v. Jackson, 192 S.W.3d 297, 305 (Ky. 2006).

[6] Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F. Supp. 507, 508 (E.D. Mich. 1983).

[7] Yoh v. Hoffman, 27 P.3d 927, 931 (Kan. App. 2001).

[8] 28 U.S.C. § 1927.

[9] They won’t.  The movies are old and obscure but each popped into my head.

[10] The next line, “I’ll make you understand,” did not enter my head, meaning I arguably retain some semblance of sanity.

[11] Unlike Nygma I did not have a psychotic episode and start wearing a green suit with a question mark pattern.

[12] The whole movie is full of instant quotes.

[13] To continue the analogy, after Santa destroys the boy’s dream, he pushes the boy down the exit slide with his foot.  The boy yells “nooooooooooooooo!!!!!!!!!!!” as he slides down.   At the bottom he lands in a pile of fake snow and just lays there, staring at the ceiling, until his parents retrieve him.  That is pretty much what the rest of the day after the third hearing was like for me.