Post by Jim on Jan 4, 2010 13:41:04 GMT -5
The "Gotcha" Tactic!
By this underhanded method, unscrupulous lawyers will intentionally lead you into thinking everything you've done thus far is just fine, knowing you left open a loophole they intend to close like a noose around your neck when you least expect it.
Yes, some lawyers ARE this dishonest!
In fact, many stupid lawyers believe this is how law should be practiced - underhanded, sneaky, and treacherous.
Don't do it yourself!
Here's what one appellate court wrote in an opinion that favored me and one of my clients when the lawyers on the other side waited until the worst possible moment to delay my case by a "gotcha" tactic they knew would never succeed. By their underhanded trick to delay the proceedings, I had to take an appeal from the trial court's decision.
We won, precisely because the other side used "gotcha" tactics that the appellate court hates ... but my oppponent's treachery delayed our victory by more than a year while they manipulated the appellate process as much as they dared, so they could continue earning fees from their client.
I represented the appellant. We appealed the trial judge's improper decision to deny my client the right to go to trial after arbitration because I didn't file a written motion entitled "motion for trial de novo". There was no need to file such a motion, since I had already set the case for trial! Moreover, the "gotcha" lawyers who represented the appellee already consented to trial. The judge already scheduled the date for trial. A motion after the fact would achieve nothing. Trial was already set!
When the "gotcha" lawyers later moved the trial judge to take our scheduled trial date off the calendar because I did not file a particular paper with a particular title to accomplish what had already been accomplished (setting the case for trial) the trial judge agreed (because it meant less work for him), so we appealed ... and, predictably, we won!
The text that follows is excerpted from the appellate court's own words in their official published opinion! The names of the respective parties' names are replaced with [appellant] and [appellee] to protect me from being sued for calling a spade a spade and for telling you the "gotcha" lawyers were exactly what the appellate court said they were!
The case was already set for trial! There was, therefore, no point filing a motion to set the case for trial after it was already set for trial ... and the gotcha lawyers knew it!
The "gotcha" lawyers were scolded by the appellate court on the public record for all the world to see.
Here's what the appellate court wrote in its opinion:
"The trial court entered a final judgment on an arbitration award because the court found that appellant [my side] did not file a request for trial de novo within twenty days [after the arbitration decision], pursuant to Florida Rule of Civil Procedure 1.820(h).
"We reverse, concluding that appellees [the "gotcha" team of lawyers on the other side] were precluded from raising the failure to file a paper styled "Motion for Trial" under these circumstances where the case was set for trial prior to the arbitration proceeding, appellant filed a notice for a pretrial conference after the arbitration, and appellees actually participated in trial preparations and docket call after the arbitration ruling. ..."
"At the already scheduled calendar call on August 29, 2003, [appellant good guys] requested a trial date. ['Gotcha' appellee's] attorney appeared and voiced no objection. The court then set the trial for October 20.
"In accordance with the Order on Pretrial Procedures, both [appellant's] and [appellee's] attorneys appeared at a uniform motion calendar hearing the following week regarding the filing of the joint pretrial stipulation. Both lawyers told the judge that they expected to complete it soon. Both lawyers signed the revised joint pretrial statement later that day.
"Ten days later, [appellee 'gotcha' lawyers] filed a motion for final judgment alleging that because [appellant] failed to file a motion for trial de novo, the court was required to enter final judgment on the arbitrator's decision. After argument, the court agreed, entering final judgment and denying a motion for rehearing.
"[In this case] a notice for trial had already been served, and the trial had been set on the docket. The filing of a pleading styled 'motion for trial' under such circumstances does not seem required, ...
"To the contrary, in this case, based upon the provisions of the order setting trial, [appellant's] attorney filed a notice setting the pretrial conference only four days after receiving the arbitrator's decision. In the notice, [appellant] clearly indicated a desire to proceed to trial in the case. Both attorneys attended the calendar call for the trial period, and [appellant] requested a trial date in open court, in accordance with the order setting trial. Its attorney met with [appellee's] attorneys to hammer out a joint pre-trial statement. There is no question in this case that [appellant] requested a trial within twenty days of the arbitrator's decision, and there is more than a 'hint' of that fact in the filings with the court.
"Even though the notice indicating a continued demand to proceed to trial was not specifically styled a 'motion for trial de novo,' we would conclude that [appellee], through its conduct, is precluded from raising the issue of non-compliance with rule 1.820. It did not object when its attorneys were noticed to attend the pretrial conference; it worked with [appellant's] attorney to develop the pretrial statement; and it did not object to setting the trial at the docket call. All of these events occurred within the time in which [appellant] could have filed a 'motion for trial de novo' had it known that [appellee] was insisting that it file a document so styled.
"[Appellee] continued preparing for a trial and never revealed its argument that the notice of setting the pretrial conference in accordance with the order setting trial was insufficient to put it on notice that [appellant] intended to proceed with a trial.
"The purpose of the motion for trial in court-ordered non-binding arbitration is to hasten the litigation along, make the parties evaluate the award, and either accept it or complete the litigation through trial, [and to put] the other side on notice that it should be prepared for trial.
"It is a procedural device to hasten the end of litigation. It too should not be interpreted to introduce "gotcha" tactics into litigation. ...
"In Cabot v. Clearwater Construction Co., 89 So.2d 662, 664 (Fla.1956), Justice Thornal, speaking for the court after adoption of the Rules of Civil Procedure, said: No longer are we concerned with the 'tricks and technicalities of the trade'.
"The trial of a lawsuit should be a sincere effort to arrive at the truth.
"It is no longer a game of chess in which the technique of the maneuver captures the prize.
"And as Judge Schwartz said in Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979), the 'gotcha!' school of litigation" will not be tolerated.
"Similarly, in this case the appellees' attorneys' words, actions, and conduct led [appellant's] attorney to believe that they assented to its request for a trial de novo, as reflected in its filed notice to set the pretrial conference in accordance with the order setting trial.
"We have continually decried the use of "gotcha" litigation tactics. See, e.g., Gardner; Rappaport v. Hollywood Beach Resort Condo. Ass'n, Inc., 905 So. 2d 1024 (Fla. 4th DCA 2005); Jenkins v. UBN Global Trading Corp., 886 So. 2d 1057 (Fla. 4th DCA 2004); A.J.; Berkman v. Foley, 709 So. 2d 628 (Fla. 4th DCA 1998).
"We again reiterate our disdain for such litigation conduct.
"Reversed and remanded for a trial on the merits."
By this underhanded method, unscrupulous lawyers will intentionally lead you into thinking everything you've done thus far is just fine, knowing you left open a loophole they intend to close like a noose around your neck when you least expect it.
Yes, some lawyers ARE this dishonest!
In fact, many stupid lawyers believe this is how law should be practiced - underhanded, sneaky, and treacherous.
Don't do it yourself!
Here's what one appellate court wrote in an opinion that favored me and one of my clients when the lawyers on the other side waited until the worst possible moment to delay my case by a "gotcha" tactic they knew would never succeed. By their underhanded trick to delay the proceedings, I had to take an appeal from the trial court's decision.
We won, precisely because the other side used "gotcha" tactics that the appellate court hates ... but my oppponent's treachery delayed our victory by more than a year while they manipulated the appellate process as much as they dared, so they could continue earning fees from their client.
I represented the appellant. We appealed the trial judge's improper decision to deny my client the right to go to trial after arbitration because I didn't file a written motion entitled "motion for trial de novo". There was no need to file such a motion, since I had already set the case for trial! Moreover, the "gotcha" lawyers who represented the appellee already consented to trial. The judge already scheduled the date for trial. A motion after the fact would achieve nothing. Trial was already set!
When the "gotcha" lawyers later moved the trial judge to take our scheduled trial date off the calendar because I did not file a particular paper with a particular title to accomplish what had already been accomplished (setting the case for trial) the trial judge agreed (because it meant less work for him), so we appealed ... and, predictably, we won!
The text that follows is excerpted from the appellate court's own words in their official published opinion! The names of the respective parties' names are replaced with [appellant] and [appellee] to protect me from being sued for calling a spade a spade and for telling you the "gotcha" lawyers were exactly what the appellate court said they were!
The case was already set for trial! There was, therefore, no point filing a motion to set the case for trial after it was already set for trial ... and the gotcha lawyers knew it!
The "gotcha" lawyers were scolded by the appellate court on the public record for all the world to see.
Here's what the appellate court wrote in its opinion:
"The trial court entered a final judgment on an arbitration award because the court found that appellant [my side] did not file a request for trial de novo within twenty days [after the arbitration decision], pursuant to Florida Rule of Civil Procedure 1.820(h).
"We reverse, concluding that appellees [the "gotcha" team of lawyers on the other side] were precluded from raising the failure to file a paper styled "Motion for Trial" under these circumstances where the case was set for trial prior to the arbitration proceeding, appellant filed a notice for a pretrial conference after the arbitration, and appellees actually participated in trial preparations and docket call after the arbitration ruling. ..."
"At the already scheduled calendar call on August 29, 2003, [appellant good guys] requested a trial date. ['Gotcha' appellee's] attorney appeared and voiced no objection. The court then set the trial for October 20.
"In accordance with the Order on Pretrial Procedures, both [appellant's] and [appellee's] attorneys appeared at a uniform motion calendar hearing the following week regarding the filing of the joint pretrial stipulation. Both lawyers told the judge that they expected to complete it soon. Both lawyers signed the revised joint pretrial statement later that day.
"Ten days later, [appellee 'gotcha' lawyers] filed a motion for final judgment alleging that because [appellant] failed to file a motion for trial de novo, the court was required to enter final judgment on the arbitrator's decision. After argument, the court agreed, entering final judgment and denying a motion for rehearing.
"[In this case] a notice for trial had already been served, and the trial had been set on the docket. The filing of a pleading styled 'motion for trial' under such circumstances does not seem required, ...
"To the contrary, in this case, based upon the provisions of the order setting trial, [appellant's] attorney filed a notice setting the pretrial conference only four days after receiving the arbitrator's decision. In the notice, [appellant] clearly indicated a desire to proceed to trial in the case. Both attorneys attended the calendar call for the trial period, and [appellant] requested a trial date in open court, in accordance with the order setting trial. Its attorney met with [appellee's] attorneys to hammer out a joint pre-trial statement. There is no question in this case that [appellant] requested a trial within twenty days of the arbitrator's decision, and there is more than a 'hint' of that fact in the filings with the court.
"Even though the notice indicating a continued demand to proceed to trial was not specifically styled a 'motion for trial de novo,' we would conclude that [appellee], through its conduct, is precluded from raising the issue of non-compliance with rule 1.820. It did not object when its attorneys were noticed to attend the pretrial conference; it worked with [appellant's] attorney to develop the pretrial statement; and it did not object to setting the trial at the docket call. All of these events occurred within the time in which [appellant] could have filed a 'motion for trial de novo' had it known that [appellee] was insisting that it file a document so styled.
"[Appellee] continued preparing for a trial and never revealed its argument that the notice of setting the pretrial conference in accordance with the order setting trial was insufficient to put it on notice that [appellant] intended to proceed with a trial.
"The purpose of the motion for trial in court-ordered non-binding arbitration is to hasten the litigation along, make the parties evaluate the award, and either accept it or complete the litigation through trial, [and to put] the other side on notice that it should be prepared for trial.
"It is a procedural device to hasten the end of litigation. It too should not be interpreted to introduce "gotcha" tactics into litigation. ...
"In Cabot v. Clearwater Construction Co., 89 So.2d 662, 664 (Fla.1956), Justice Thornal, speaking for the court after adoption of the Rules of Civil Procedure, said: No longer are we concerned with the 'tricks and technicalities of the trade'.
"The trial of a lawsuit should be a sincere effort to arrive at the truth.
"It is no longer a game of chess in which the technique of the maneuver captures the prize.
"And as Judge Schwartz said in Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979), the 'gotcha!' school of litigation" will not be tolerated.
"Similarly, in this case the appellees' attorneys' words, actions, and conduct led [appellant's] attorney to believe that they assented to its request for a trial de novo, as reflected in its filed notice to set the pretrial conference in accordance with the order setting trial.
"We have continually decried the use of "gotcha" litigation tactics. See, e.g., Gardner; Rappaport v. Hollywood Beach Resort Condo. Ass'n, Inc., 905 So. 2d 1024 (Fla. 4th DCA 2005); Jenkins v. UBN Global Trading Corp., 886 So. 2d 1057 (Fla. 4th DCA 2004); A.J.; Berkman v. Foley, 709 So. 2d 628 (Fla. 4th DCA 1998).
"We again reiterate our disdain for such litigation conduct.
"Reversed and remanded for a trial on the merits."