April 24, 2012

October 2006 - Lawyers Behaving Badly

Randall E. Hand of Plano, who is vice president and senior counsel to Computer Associates, Inc., was the first to send me this very imaginative order written by Judge Pendleton Gaines of the Superior Court of Arizona (Maricopa County) in the case of Physicians Choice of Arizona, Inc. v. Mickey Miller, et al. (CV 2003-020242).

Plaintiff ’s Motion to Compel Acceptance of Lunch Invitation
The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support. …

Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.” Defendant’s counsel failed to respond until the motion was filed.

Defendant’s counsel distrusts Plaintiff ’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case. The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff ’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on … ” Plaintiff’s counsel.

Plaintiff’s counsel replies somewhat petulantly, criticizing Defendant’s counsel’s acceptance of the lunch invitation on the grounds that Defendant’s counsel is “now attempting to choose the location” and saying that he “will oblige,” but Defendant’s counsel “will pay for its own meal.” …

Each side may be represented by no more than two lawyers of its own choosing, but the principal counsel on the pending motions must personally appear.

The cost of the lunch will be paid as follows: Total cost will be calculated by the amount of the bill including appetizers, salads, entrees, and one non-alcoholic beverage per participant. A 20-percent tip will be added to the bill (which will include tax). Each side will pay its pro rata share according to number of participants. The Court may reapportion the cost on application for good cause or may treat it as a taxable cost under ARS §12-331(5).

During lunch, counsel will confer regarding the disputes identified in Plaintiff’s motion to strike Defendant’s discovery motion and Defendant’s motions to quash, for protective order and for commission authorizing out-of-state depositions. At the initiative of Plaintiff’s counsel, a brief joint report detailing the parties’ agreements and disagreements regarding these motions will be filed with the Court not later than one week following the lunch and, in any event, not later than noon, Wed., Aug. 23, 2006.

It is ordered:
1. Plaintiff ’s motion to compel Defendant’s counsel’s acceptance of lunch invitation is granted on the terms and conditions set forth above.

2. The parties are directed to file the joint report referred to above.

3. Further action on the parties’ pending discovery motions is deferred pending receipt of the joint report.

4. Defendant’s motion to strike Plaintiff’s proposed amended complaint is granted.

5. The oral argument set in this division on Aug. 2, 2006, at 9:15 a.m. is vacated.