Letting Your Opposing Counsel Know It’s The Other Way

You remember that iconic scene from The Wire where Marlo Stanfield, the drug boss, showed the store rent-a-cop “it’s the other way.” A Courtroom5 member recently shared her experience of teaching that lesson to an arrogant opposing lawyer.

In the scene, Marlo browses the aisles of a convenience store, watching the security guard watch him. He’s feeling himself and wants to knock 5-0 off his roost, a power play to show the guard who’s really in charge. Marlo pays for his bottled water but slips a couple unpaid lollipops into his pocket while looking the guard dead in the face.

Marlo is a known quantity, and the guard doesn’t want trouble. But he has a job. So he follows Marlo outside to challenge the theft. Marlo explains to him, “You want it to be one way. But it’s the other way.”

Lawyers opposing Courtroom5 members sometimes discover it’s the other way through painful experience. The “one way” they know, where pro se litigants are quickly strong-armed into defeat, is not the way at Courtroom5. Here, it’s the other way, where people have the tools to handle bullies.

Our member Patricia filed a personal injury claim a few months ago. The defendant’s law firm entered an appearance in the case and promptly answered her complaint. Then they filed a motion to dismiss her claim and scheduled the hearing without consulting Patricia. When Patricia asked to reschedule because she had a conflict, a paralegal at the law firm told her they’d scheduled the hearing for the convenience of the lawyers, and tough luck. Patricia was told the hearing would go on as scheduled whether she attended or not.

In Patricia’s state and many others, lawyers have access to court calendars, but pro se litigants do not. That meant Patricia couldn’t cancel or reschedule the hearing on her own. She realized she would never be able to schedule hearings without consulting the defendant, as they had done to her. It was patently unfair.

But rather than cry in her milk, Patricia decided she wouldn’t be lawyer-handled that way. If the defendant refused to play fair, she’d get a judge to make them play fair.

There were two ways to go about it. The straightforward way was to file a motion to strike the notice of hearing on grounds the defendant hadn’t consulted her before setting it on the judge’s calendar, and that she had a conflict on that date. Patricia calculated that the judge would shrug his shoulders and refuse to act. So instead, she went over the top, demanding access to the court’s electronic calendar system, which the paralegal had used to schedule the hearing.

Patricia argued she’d been denied equal access to the courts.

There’s a statute in most states, and a constitutional provision in others, mandating equal access to the courts. It’s the reason for language translators, reasonable accommodations for the disabled, indigent fee waivers, and self-help forms and tools. But when a lawyer can schedule a hearing and an unrepresented party cannot, there’s clearly still work to do in providing equal access to the courts.

In Patricia’s case, a state bar number was required to access the court’s calendaring system. She didn’t have one.

So Patricia filed a motion demanding access to the calendar, with an alternative motion (something the court could grant instead to make things better) to strike the hearing and order the defendant not to use the electronic calendar for the remainder of the case. Tricky, yeah. A fundamental sales principle is to give the customer an expensive alternative to your main product. It makes what you want to sell look like a bargain. Patricia gave the judge a choice between letting all pro se litigants access the calendar or stopping a single lawyer from abusing his access.

It was a simple choice, but Patricia went even further. Another sales principle is to create a sense of urgency. Patricia filed an emergency motion for access to the calendar because there wouldn’t be time before the scheduled hearing to hear her motion to strike that hearing. That meant the judge would grant or deny her motion without hearing from the defendant’s lawyers.

It was over in less than a day. A duty judge granted Patricia’s alternative motion, striking the hearing and requiring all future hearings be jointly scheduled. The defendant’s lawyer was barred from using the court’s calendaring system to schedule a hearing without Patricia’s permission. Instead, all hearings would be scheduled through a judicial assistant assigned to the case, to whom the parties had equal access.

A level playing field was all Patricia wanted. As a pro se litigant, she’d had to go around the block to get it, but she got it. The lawyer who’d wanted it to be one way was made to understand it was the other way.

So many times in life we are brought to that understanding. There’s a bigger lesson here:

We want to believe that our loved ones will live forever and then someone dies. We want to believe our relationships will last forever and then your lover leaves. We want to believe that our children will be ‘productive’ and then they are incarcerated. We want to believe we have job security and then we are fired. We want to believe we will remain healthy and then we are stricken with illness. With each incident we feel pain. And the reason we feel this pain is because we want it to be one way, but it’s the other way.

The law firm representing Patricia’s opponent will hopefully do things differently now. They’ll need a more legitimate case strategy, because Patricia did not come for play play.