A colleague came to me today seeking advice. Opposing counsel had served her client with a rule to show cause but the service hadn’t been done properly. The hearing was coming up and she wanted my advice on what she should do.
Every attorney makes occasional procedural mistakes. I’m a bigger stickler for the rules than any attorney I know but if another attorney’s procedural mistakes don’t prejudice my client I’m inclined to note them to opposing counsel but then not require them to redo the task to comply with the proper procedure. Even when the defect prejudices my client, I point out the defect as soon as I note it–rather than springing it on opposing counsel at the time of the hearing.
Most times when I make procedural errors opposing attorneys have been gracious enough to point out my error well before the hearing. This collegiality is greatly appreciated–it’s one of the reasons I so enjoy practicing law in South Carolina. Only a few times have opposing attorneys sandbagged me: waiting until the hearing to point out my procedural error. Such behavior is reprehensible. It’s solely designed to embarrass me in front of my client and the presiding judge. The few attorneys who have pulled this stunt against me are on my short list of attorneys who are never provided courtesy when they seek it.
When an attorney waits until the hearing to point out the other side’s procedural defects, some judges will award fees to that attorney for “prevailing” on the issue. Of course the other side has every right to refile the paperwork so justice isn’t denied, merely delayed. The more astute judges will note this sandbagging, asking the complaining counsel why the defect wasn’t disclosed earlier, and then refuse to award fees when the explanation indicates sandbagging.
While there are often short term advantages from waiting until the hearing to note the other side’s procedural defects, these gains are always short term. The few times opposing counsel has pulled such sandbagging on me, I simply refiled the motion or rule and sought additional fees for having to prepare and appear twice. Meanwhile the attorney who’s employed such a strategy has made an enemy of opposing counsel.
An honorable attorney will point out such defects as soon as they are discovered. That’s the advice I gave my colleague. After some hemming and hawing she finally agreed with it. Unless one enjoys collecting enemies, avoid the temptation of sandbagging for short term advantage.