When I checked my email late in the morning on July 12, 2022, I discovered that I had missed a flurry of communications between Tommy and Todd Hill, Judge Bouressa’s court administrator. It turned out that they had scheduled a hearing on Tommy’s motion to dismiss my libel lawsuit, but they had somehow neglected to involve me in the discussion.
Scheduling a Hearing: Prologue
Just four days earlier, Tommy had wanted to schedule a hearing in my easement case, in which I was represented by attorney Robert Newton. Not only did Tommy ask Robert about convenient dates before he contacted Todd to schedule the hearing, he was so solicitous that you might have thought they were on the same team, instead of being on opposite sides of a lawsuit.
Here are some of the highlights of the notes they exchanged over a few days:
Tommy: Robert, we have inquired about setting our Motion for Summary Judgment for hearing in August. The Court can hear this on August 22, 23, 24, and 25. Do you have conflicts with any of these days?
Robert: Let me get back to you about that on Monday. I am out of town through the weekend.
Tommy (Monday): Any update?
Robert: I’ll ask my client if he has any unavailable dates for the MSJ hearing. I’m trying to firm some of those dates, as well.
Robert: Let’s go with 8/22 for the MSJ hearing. Anytime should work. I do have one floating trial date that I should know in the next day or two, but I think it will be earlier. If there is a conflict, I will let you know. The second best date for me would be 8/25. I’m trying to avoid 8/23 or 8/24 so that I do not conflict with any birthday activities for my daughter.
Tommy: Thanks, Robert. We will set it for 8/22, but if you have a conflict, let me know, and I will be happy to move it.
It sounded like Tommy and Robert were nearly tripping over each other to see which one of them could be more agreeable. And why not? After all, they were litigation opponents, not mortal enemies. And not only are lawyers bound by rules of professional conduct that require that they treat opposing counsel with respect, unnecessary hostility would waste everybody’s time and energy.
But that was on July 8. By July 12, Tommy’s attitude about the way he should treat a litigation opponent seemed to have undergone a 180-degree transformation. Especially if that litigation opponent happened to be me.
Scheduling a Hearing: Development
By the time I checked my email on the morning of July 12, Tommy had already contacted Todd and had successfully scheduled a hearing on his motion to dismiss my libel lawsuit.
Of course, the process went a lot faster for Tommy because he didn’t bother to ask for my input before he unilaterally launched the process of scheduling the hearing.
Here are some of the highlights of the notes Tommy exchanged with Todd before I even knew that anything was going on:
Tommy (9:48 AM): Todd, on behalf of myself and my law firm as parties to the above-referenced defamation suit, I have filed an Anti-SLAPP Motion to Dismiss that we would like to set for hearing at the Court’s first available setting. Would you please provide us with dates and times?
Todd (9:50 AM): We have the following in-person hearing dates available:
August- 22, 23, 24, 25
September- 6, 7, 8, 28, 29
October- 10, 11, 12, 13, 31
Please confer with all parties before setting a hearing date with the Court. Once you all have agreed on a date/time, notify the Court by email.
Tommy (10:01 AM): Thank you, Todd. We would like to set this for August 24th. Can you please let us know the time?
Todd (10:59 AM): The Anti-SLAPP Motion to Dismiss has been set for hearing on 8/24 at 11:00 a.m.
The first thing I noticed was that, although Tommy had given Robert a list of available hearing dates and asked Robert for his preference, and although Tommy had graciously offered to reschedule that hearing if Robert had a conflict, the only options he offered me before he set the hearing date were… Oh, wait, Tommy didn’t offer me any options, he just went ahead and scheduled the hearing on his own.
But maybe that’s just a tactic that experienced lawyers use? I’m not a lawyer, so there are probably a lot of tricks that I don’t know. Maybe it’s just smart lawyering to catch your opponent off-guard simply by scheduling a hearing before he knows anything about it.
But, no: A glance at the note that the court administrator sent to Tommy at 9:50 AM reveals that’s not the way it’s supposed to work:
Todd, to Tommy: Please confer with all parties before setting a hearing date with the Court. Once you all have agreed on a date/time, notify the Court by email.
I knew that Tommy had an incredible advantage over me in trying a case in court because he’s a lawyer and I’m not. I was playing the game on his home field. But I expected that at least we’d both be playing by the same rules.
Apparently, I was either overly optimistic or incredibly naïve.
Scheduling a Hearing: Resolution
Because Tommy had violated one of Todd’s explicit rules, I was hoping that I could get Todd to intervene:
Me, to Todd (11:22 AM): Todd, in your email of 9:50 this morning, you said: “Please confer with all parties before setting a hearing date with the Court.”
I am a party, but I have not been conferred with, and yet somehow it appears that a hearing date has already been set. Since I am totally unfamiliar with court procedure, it’s certainly possible that I misunderstood your statement, so I’m hoping that you can clarify the situation for me.
But if I did understand your statement correctly, and if proper procedure does require the party submitting a hearing request to “confer with all parties before setting a hearing date with the Court,” I would like to protest that a hearing date appears to have been set in apparent violation of the proper procedures, and I would like to request that the hearing be removed from the schedule until such time as the proper procedures have been followed. Thank you for your help with this.
Before Todd had a chance to respond, I received a pre-emptive email from Tommy:
Tommy, to Me (11:30 AM): I did not gather from your email that you have an actual conflict that day. Do you have a conflict at 11:00 am on August 24th? If so, please advise whether the morning of August 25th will work. If neither will work, we will need to know the nature of the conflict that prevents your participation on both days.
He will need to know? Meaning that there will be consequences if I reject both dates unless I can prove to Tommy that I have a legitimate excuse? (Do I need a note from my mother?) Just a few days earlier, Tommy had let Robert choose from four prospective hearing dates, and then he added that he would be happy to change the date if Robert developed a conflict. Am I not worthy of the same kind of civil treatment just because I’m not blessed enough to be a lawyer?
I thought about telling Tommy that neither of those dates was good for me just to see what would happen. But in my ignorance about court procedures, I was worried that maybe Tommy could, indeed, force me to prove that I had conflicts on both those days, and that I would somehow be sanctioned by the court if I failed to do so. (Spoiler: I had no conflicts on those days.) So in a small (but symbolic) act of defiance, I rejected Tommy’s original insistence that the hearing had to be held on August 24, and I opted for the other date instead:
Me, to Tommy (1:34 PM): Thursday August 25 works for me.
I know, I let Tommy bully me into acting like I had to select from the limited options with which he presented me. It’s embarrassing in retrospect, but that’s what happened.
A few minutes later, Tommy notified Todd that “we” had settled on a new date for the hearing:
Tommy, to Todd (1:42 PM): We have conferred further and would like to move the Anti-SLAPP hearing to August 25th.
I couldn’t help but notice that Tommy told Todd that he and I had conferred “further” – which was literally impossible, because we had actually never conferred at all. It seemed to me that Tommy was trying to convince Todd that he had been complying with the rule about conferring with all parties before setting a hearing date with the court, even though it wasn’t true.
So: Did it make any sense for Tommy to tell Todd that we’ve had further discussions when we hadn’t actually had any discussions at all?
Go ask Alice. I think she’ll know.
“Take some more tea,” the March Hare said to Alice, very earnestly.
“I’ve had nothing yet,” Alice replied in an offended tone.
“So I can’t take more.”
– Alice’s Adventures in Wonderland, Lewis Carroll
Document Links
Emails between Robert and Tommy re: MSJ hearing
Emails between Tommy and Todd re: TCPA hearing
Emails with Tommy and Todd re: TCPA hearing
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