Said the judge to the lawyer: “Counsel, I’ve read your papers, but how does yesterday’s decision in _____________ affect your argument”? Said the lawyer to the judge: “Well, your Honor, I… uh… I’m not familiar with that case.”
Maybe you think this scenario isn’t a real problem. You tell yourself, “If it’s a significant case, I’ll know about it. And if I haven’t heard about it, why then, I’ll just tell the truth. The judge won’t fault me if the case is only a few days old.” But that, of course, depends on expectations, and expectations are changing.
In our increasingly online, technology-driven world, every new case is available immediately. Any attorney, judge, or arbitrator can go to any court’s website and read a new case on the day of publication. And for those of us who don’t have time to check every court site and read every case, every day, there’s a service that provides a daily bulletin summarizing appellate decisions, the Dailies. Many states have similar services. When I first started practicing in California (more years ago than I care to admit), I quickly learned that checking those updates was an absolute necessity. Judges, partners in the firm, and my opponents all expected me to have seen and read anything relevant.
Over the years, I’ve encountered several instances where judges — sometimes with just a hint of delight — sprang a new case on me at oral argument. And I’m sure many of you have had experiences where knowing about a new case gave you a huge advantage. Here’s one that really stayed with me as a cautionary tale. In 2010, the Washington Supreme Court handed down a pair of decisions substantially limiting the Economic Loss Doctrine just days before we were due to receive our opponent’s summary judgment on that very theory. So, when I saw the decisions, I assumed the game was up, and we’d shortly receive the call about settlement. Apparently unaware of the change, however, our opponents blithely filed their motion. Needless to say, we won handily.
In that example, knowing about the new decision would have saved our opponents some embarrassment in front of the court, and might have given them an opportunity to try another theory before their summary judgment deadline. But what really struck me at the time was the thought of our opponents trying to explain the mistake to their clients. Just three years later, imagining that same mistake in our brave new online world positively makes me cringe.
Just how quickly are the expectations changing here? I’m not sure. But I do know that, theatrics aside, my imaginary colloquy will become more and more common.
Washington Daily Decision Services, referred to as The Dailies, is a WSBA-sponsored member benefit.