Federal Judge Utterly Done With Lawyer’s Pettiness

I’ve never really thought of a judge as the parent trying to reason with two squabbling siblings before, but after reading this opinion from Judge R. David Proctor, from the Northern District of Alabama, it’s the only image I can summon. He starts his order on out strong — quoting Shakespeare:

“Tomorrow and tomorrow and tomorrow,” writes our language’s finest craftsman, “creeps in this petty pace from day to day.” William Shakespeare, The Tragedy of MacBeth, Act V, Scene V (1623). These are the words the Bard penned centuries ago in this play set in the cavernous stone hallways of Inverness Castle.
“Tomorrow” and “petty.” Sometimes we are not focused on “tomorrow” but rather the very next hour or even the next minute. And, in the context of this case, “petty” hardly does justice to counsels’ behavior. Although counsel have been admonished repeatedly over the course of this litigation to behave in a manner befitting their profession, it seems that every time chambers receives a phone call or filing from them, the bar manages to be lowered further – and further.

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Oooooh, SNAP. You know we’re here for the petty. See, he’s adjudicating a motion where the defendants were seeking to strike plaintiff’s opposition brief for being late. How late you ask? I’ll let the judge tell you, because you can feel the contempt oozing off the page:

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In the Motion, Defendants seek to strike Plaintiff’s opposition brief because — and the court is not making this up — it was filed fifteen minutes late. It was due to be filed by 5:00 p.m. It was not filed until 5:15 p.m.

He continues:

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Fifteen minutes. It seems like such a short time interval. But, there are times during our lives when 15 minutes can make a big difference. In the litigation world, a party presenting oral argument (before say the Judicial Panel on Multidistrict Litigation or the Eleventh Circuit) would love to have just 15 more minutes to present the case. Applicants for law school desperately desire a mere 15 minutes more while taking the LSAT. A marathoner would rejoice if the race was over 15 minutes sooner than when she actually crossed the finish line. In the football world, there have been games when the vanquished team wished they had 15 more minutes to try to engineer one more scoring drive. Travelers who are running late would often not miss flights if they had an extra 15 minutes to get to the gate.
There are no doubt many other instances when 15 minutes could make a world of difference. But, the electronic filing of an opposition brief in this court on a late Thursday afternoon is not one of them.

But Judge Proctor isn’t done ridiculing the ridiculousness of the motion. He hypothesizes a “far away, undiscovered parallel universe” where a theoretical conversation might take place that would provide better context for such a frivolous motion as the defendant’s:

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[Scene: The sun is setting on Thursday, December 15th, yet another pleasant day in federal court paradise. Term Clerk # 1 knocks sheepishly on Term Clerk # 2’s office door, wearing a face that Term Clerk # 2 has come to understand is an indication of panic or confusion (or both).]
Term Clerk # 1: “I’m so nervous I might be sick.”
Term Clerk # 2: “Oh no, what’s wrong?!”
Term Clerk # 1: “We extended the deadline for Plaintiff in the Whitworth case to respond to a motion for summary judgment. The brief is now due today at 5 PM. We have given two extensions already. And now it’s 4:59 but nothing’s been filed. I don’t know what to do.”
Term Clerk # 2: “Alas! If the clock strikes 5:01 and we have no response, what will become of the Whitworth case? Of us? Of Article III?”
Term Clerk # 1: “I know, Term Clerk # 2, I know. The implications are as unimaginable as they are consequential. Perhaps we should pray that we receive a timely response. After all, although we have hundreds of other cases, everyone in chambers has been counting down to this moment when we finally will see exactly what Plaintiff has to say in her brief.”
[A prayer is said – in Latin. It is very dignified, as befits such a momentous point in legal history. Just then, Career Clerk enters.]
Career Clerk: “What are you guys doing? Is everything alright? Wait a minute– what time is it? It’s after 5 isn’t it? Please tell me we got a response from Plaintiff in the Whitworth case.”
Term Clerk # 2: “I’m afraid not.”
Career Clerk: “This is terrible! Who is going to tell the Judge?”
Term Clerk # 1: Wait! We got something! I mean, it is 5:15 — but it’s finally here!
Career Clerk: “Gratias Deo! This can’t wait until tomorrow. Let’s all stop what we are doing. Circulate the opposition brief. We will be here for quite a while tonight reading — no, consuming and cherishing — every syllable of this filing.”

Only in such a distant, parallel universe would Defendants’ Motion to Strike (Doc. # 123) make any sense.

It’s great to see lawyers get a dose of reality. You can read the full order below.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

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Benchslaps, Courts, R. David Proctor