Posted by
NOTLEGALROADKILLYET on Monday, August 21, 2006 11:13:52 AM
One of the most powerful weapons a judge has available to him to curtail criticism is the hope that a litigant holds out for fair treatment in his court, or perhaps the fear a litigant may feel of unfair treatment.
Once a judge issues a series of rulings or fails to take actions that his ethics code and court rules plainly require him to take, and does so over a period of years, the disadvantaged litigant eventually loses his hope or fear.
About a year ago, I reached that point. Humorously the event I am about to describe occurred after I decided I could not get a fair ruling from this judge. I use it because it illustrates both the ethics of the opposing attorney and the willingness of the judge to look the other way.
One of the reasons my lawsuit is nearing its seventh anniversary of its existence is that the defense appears to have adopted a very effective stalling strategy of withholding discovery and failing to respond to letters and motions my attorney has sent and made. More than once, when the court date came near and it was time for the pre-trial conference, the opposing attorney would claim not to have been served the motions. Once my attorney double served him and he still made that claim.
In August of last year, my attorney filed for a default judgment based on this conduct. When there was again no response, he filed for money damages. The judge made it obvious that he didn't want to issue a default judgement. Despite a two year history of the defense attorney not having responded, the judge gave him two more extensions and two more chances to respond. The second one stated that he would issue a default judgment if he had no response by November 10th.
Most judges would feel they had no choice but to follow through on their threat after the 10th had come and gone. Not this judge. Finally on December 9th, he issued a default judgment which he back dated to the 6th. Of course, he didn't award damages.
Inevitably, the Defendant asked that the default judgement be reversed. In that motion, a new counsel referred to a motion that the defense attorney had filed on December 1st, attempting to head off a default judgment.
My attorney hadn't seen this motion and apologized for having missed it. By this time, I was a complete cynic and told my attorney that I was willing to bet that the defense attorney never intended for him to see it.
Sure enough, when he retrieved the motion from the courthouse, which he had to do because it had been manually, rather than electronically filed, it had a rather curious certificate of service. The defense attorney claimed to have "hand carried" the motion to an office my attorney had vacated 18 months before.
In January and February, this defense attorney had occasion to file two affidavits in support of his client's attempt to get the judgement reversed. In the first, he claimed to be an "electronic filer." In the second, he demonstrated that in August 2004, he had learned that my attorney had vacated his office when he tried to have a packet of materials delivered. In support of his affidavit, he conveniently provided a copy of the cover letter for that packet.
My attorney visited his old office and obtained an affidavit from the current occupant that they had never received the December 1 affidavit.
So, why would an "electronic filer" choose to avoid that system and claim to "hand carry" a motion to an office he knew was long vacated? Perhaps we can learn by examining the content of the motion: In it, the attorney told the judge that his business had increased "fourfold" and he didn't have time to respond (an apparent ethics violation); that he admitted the delay was his fault; that he would pay my reasonable attorneys fees for this period; and that he would contact my attorney on the issue.
Nine months later, he has yet to pay my attorney's fees, nor has he bothered to contact my attorney about the issue. We sought and got a $12,000 judgment against the attorney and his client, which is yet to be paid.
I believe that a reasonable person examining this set of events would conclude that the defense attorney was attempting to pretend to the judge that he was contrite and would make me whole when he had no such attention. By filing a "secret" motion he appears to have hoped we would never know.
True to the form of the last three years, the judge takes no notice. I believe that someone examining the pre-trial record might well conclude that the attorney uses these tactics because the judge has signaled him more than once that he will tolerate them.
Such is the state of legal and judicial ethics in Colorado. It gets worse. Stay tuned.