As many readers of this website already know from firsthand experience, lawyers and law firms are not perfect, and mistakes often occur in the practice of law. Law office failure is fairly commonplace, and missed deadlines, failure to calendar events, and other issues often arise in legal practice because lawyers and staff are human and may make errors. Judges and court staff may also make mistakes since court bureaucracies may miss things and human error can occur in the judiciary. However, far too often, courts blame attorneys for issues that are the fault of courts, and judicial officers should more often admit fault when they are to blame for an issue.
When I was in law school, it was easy to view judges and the judiciary as almost infallible since the administration of justice is an idealized concept for people just starting in the legal profession. After becoming a practicing lawyer, I discovered that courts and their staff are often overburdened and underresourced. To be clear, judges and court staff often try their absolute best to administrate justice in the most efficient and equitable way possible, but errors, of course, are often made. In my experience, judges and court staff are extremely hesitant to admit fault and often lay blame on attorneys and others for issues caused by courts, perhaps as a way to protect the image of the judiciary. However, such tactics are not transparent, and courts should be more open about how they could do better.
For instance, earlier in my career, I filed a simple motion, and it took many months for the court to finally render a decision on the motion. Discovery was stayed in the case while the motion was pending, and by the next compliance conference, discovery had not been completed. At the conference, the court yelled at all of the lawyers for not completing discovery by the standards and goals by which the case was supposed to be resolved. This was shocking to the attorneys since the case was proceeding relatively quickly after discovery had resumed following the judge’s decision on a motion.
The main reason why the case had stalled for the better part of a year was because the court failed to render a decision involving a relatively straightforward motion for an extremely long time. Of course, the court was probably backlogged, and the court did not have the resources to submit a decision earlier. Nevertheless, the attorneys would have appreciated it if the court assumed some of the fault for delaying the case rather than directing the court’s anger toward the attorneys on the matter and making our lives more difficult in speeding up the case to account for the court’s delays.
Another time many years ago in my career, I had to file an appeal of a judge who had made a problematic decision. Rather than bore my readers with the technicalities of why the judge’s decision was erroneous, just take it from me that the court denied the motion based on the wrong grounds, and any seasoned practitioner in the jurisdiction would have recognized that the court’s decision was problematic. Our firm ended up filing an appeal so that we could have an appellate court overturn the problematic decision rendered by the court.
Rather than respond to the appeal, and because plaintiff’s counsel likely saw how the court’s decision was problematic, the plaintiff’s attorney agreed to discontinue the case. However, because of the procedures of that jurisdiction, we needed to ask the trial court that had rendered the problematic decision to approve the discontinuance. At oral argument for my motion to approve the discontinuance, the court seemed to understand how the court had erred when the decision subject to the appeal had been rendered. Rather than admit fault, the court merely related that a motion for reconsideration should have been filed so that the decision could have been corrected before an appeal was filed. However, it is not clear that the standards for a motion for reconsideration were satisfied in this instance since none of the facts or law had changed after the order had been rendered. The court could have accepted fault for not arriving at the right position in the original order, which had forced our client to spend significant resources drafting an appeal before a stipulation of discontinuance was offered by plaintiff’s counsel.
Let me be clear: I have much respect for judges and court officers since they have a very difficult and noble job. Court officers have acted especially admirably during the COVID-19 pandemic when administering justice during especially difficult times. Numerous active and retired judges have emailed me about my articles over the years, and I would love to hear feedback from jurists about this piece as I have enjoyed hearing from them about other articles. In any event, I have the most respect for people and institutions that can admit when they are at fault. No one is perfect, and when judges and court officers admit fault, they can dispense with the blame game and focus more on the administration of justice.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.
