Burden of Proof: To Forgive Is Divine

With the holiday season over, most of us can count the days until we break one or more New Year’s resolutions. Adding to the ubiquitous “I will lose 10 pounds” or “I will give up bacon” we resolve each year to make fewer mistakes in the practice of law. And yes, we make mistakes, less often with the passage of time and (fortunately) not with devastating impact, but we make them, and it rankles.

Sometimes mistakes are minor and fly under the radar, undetected, with no one the wiser. More often than not they surface, and the impact on the mistake-making lawyer can range anywhere from embarrassment to chastisement all the way to disciplinary action and/or a legal malpractice suit. That lawyer should make every effort to ensure that if there is going to be an impact from a lawyer’s mistake that any penalty will fall on the attorney and not the client. Better the attorney pay a $5,000.00 sanction than the court grant an adverse inference against the client.

And once we realize we have made a mistake, we know enough to know we must take prompt corrective action (so far our mistakes have been correctible). In our most recent round of CLPR Update CLEs we have a section titled “Mistakes,” and we thought we would share what we have learned from the experiences of other lawyers who have made mistakes.

And in case it isn’t obvious, never, ever, cover up or ignore a mistake. Time is not your friend, and the repercussions when the mistake is ultimately discovered (and it almost always will be) will be far worse than if prompt disclosure had been made.

Forgive and Forget

Plaintiffs established a reasonable excuse for his default in failing to timely file his cross motion and opposition to defendants’ motion for summary judgment. Plaintiff’s counsel stated that he mistakenly believed that the papers could be filed at any time on the return date of December 15, 2021, and that the e-filing at 10:58 p.m. on that date was timely, despite the fact that the papers were, in fact, due to be filed two days before the return date. Thus, the default resulted from law office failure, which a court may excuse in its discretion.[1]

Supreme Court improvidently exercised its discretion in denying plaintiffs’’ motion to vacate the underlying default. Although we share the court’s concern regarding the extended delay and the inattentiveness of plaintiffs’ former counsel, counsel’s neglect in pursuing his clients’ action should not be permitted to redound to the clients’ detriment.[2]

The court improvidently exercised its discretion in denying plaintiffs’ cross motion solely on the technical basis that the proposed amended complaint was not redlined (see CPLR 3025 [b]), since the proposed amendments to add the third-party defendants as direct defendants were sufficiently described in the moving papers and easily discerned on review of the proposed amended summons and complaint.[3]

Reprimand and Rebuke

[E]electronic signatures “have the same validity and effect as the use of a signature affixed by hand” (State Technology Law § 304 [2]). . . . The presumption of genuineness is rebuttable, however. While “[s]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature,” an expert opinion is not required. Here, plaintiff’s affidavit, which highlights the irregularities in decedent’s purported signatures, together with an exemplar of a known signature, raises issues of fact as to the authenticity of the signatures on the admission agreements. . . . Here, [Defendant] could have sought to establish the genuineness of decedent’s electronic signature by the affidavit of someone with knowledge of the Docusign protocols and indicia of reliability, both generally and as applied to decedent’s proffered signatures. [Defendant] did not do this.[4]

The initial email and the subsequent correspondence also fail to establish that the parties reached an agreement. Following the initial email, the wife’s counsel responded, asking the daughter’s counsel to “[l]eave the timing of payment open” in the draft settlement, and he suggested additional terms for the draft. Following the long-standing principle that “where the recipient of an offer is under no duty to speak, silence, when not misleading, may not be translated into acceptance merely because the offer purports to attach that effect to it,” such response did not constitute assent. . . . Although the daughter argues that this Court should find an enforceable agreement because the parties cancelled certain depositions, this is not the type of detrimental reliance that excuses compliance with CPLR 2104, and the parties are free to reschedule such depositions upon remittal, if they so choose. For these reasons, we reverse the order on appeal, deny the daughter’s motion and restore the proceedings and actions for further proceedings.[5]

Avoiding Mistakes

While there have been many recent beneficial changes to the practice of law, many as a result of COVID-19, some of those changes bring challenges of their own. From a firm management standpoint, remote work has required changes in how legal assignments are made, how work is monitored, and how the final collaboration on a project is accomplished.

Some practices (should) remain unchanged, double diary entries with multiple ticklers, tracking cases on NYSEF and PACER, and staying current with the law. But many changed.

When David started practicing his firm had regular Wednesday calendar meetings, attended by all attorneys in the firm, where the next week’s calendar assignments were given out, and issues on cases could be discussed by the assemblage. Fast forward to when Katryna started practicing, weekly paper calendars were distributed giving assignments (and yes, the calendar did eventually go electronic) and issues would be discussed between two or three attorneys at most.

We have (re-)instituted weekly, in-person calendar meetings to allow for a systematic monitoring of deadlines, review of individual case issues, and routine discussion of changes and challenges impacting our practice. It is not a bad idea to periodically re-think our practice routines to try and better them.

When You Realize You Have Made a Mistake

On the exceedingly rare occasion when you realize you have made a mistake, worry, don’t panic. Take the time to think through the error and consider potential fixes. After that, consult a trusted colleague. Formulate a plan to include disclosing the error (where necessary) and taking ameliorative action, discussed below.

Acknowledge the mistake. Consider contacting your adversary and requesting relief from the mistake. Our practice is to grant these requests (with the exception of one or two adversaries unworthy of any consideration) so long as granting the request does not compromise a right of our client. And we are not only beneficent, we have both benefited from attorneys relieving us from our mistakes, often with grace.

Tools for Correcting Mistakes

Recognizing that lawyers (and judges) make mistakes, the drafters of the CPLR devoted an entire article, Article 20, to the subject, titled “Mistakes, Defects, Irregularities[6] and Extensions of Time.”

The most oft-used tool in our CPLR toolbox for correcting errors is CPLR 2001, which parrots the article title with one change:[7]

• 2001. Mistakes, omissions, defects and irregularities.

At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid.

When All Else Fails

It is a fundamental concept of New York civil practice that our court system is designed for, and has the goal of, deciding cases on their merits. This is an argument always worth making in the situation where we need to seek leave of court to fix something. “[I]t is the strong policy of our courts to permit actions to be decided on the merits.”[8]

Fall on your sword. Ask the court to excuse the mistake. Ask the court to fashion relief (suggesting the relief is a good idea) that mitigates any prejudice to your adversary and their client. Ask that you, as the attorney, be penalized, instead of the client.

Conclusion

We all strive to do better, and a good way to do that in the New Year is to work (and yes, it involves work) to avoid making mistakes in the practice of law. And when (not if) we make them, promptly do everything possible to correct them.

We hope your 2024 is off to a good start and look forward to continuing this collaboration.

David Paul Horowitz of the Law Offices of David Paul Horowitz has represented parties in personal injury, professional negligence, and commercial litigation for over 30 years. He also acts as a private arbitrator and mediator and a discovery referee overseeing pre-trial proceedings and has been a member of the Eastern District of New York’s mediation panel since its inception. He drafts legal ethics opinions, represents judges in proceedings before the New York State Commission on Judicial Conduct and attorneys in disciplinary matters, and serves as a private law practice mentor. He teaches New York Practice, Professional Responsibility, and Electronic Evidence & Discovery at Columbia Law School.

Katryna L. Kristoferson is a partner at the Law Offices of David Paul Horowitz and has litigation experience across many practice areas. She has lectured at CPLR Update, Motion Practice, and Implicit Bias CLEs, and will be teaching “Bias and the Law” at Pace Law School next year.

[1] Giordano v. Giordano, 2023 N.Y. Slip Op. 02381 (1st Dep’t, 2023).

[2] Rosario v. General Behr Corp., 2023 N.Y. Slip Op. 03560 (2d Dep’t, 2023).

[3] Herrera v. Highgate Hotels, L.P., 213 A.D.3d 455 (1st Dep’t, 2023).

[4] Knight v. New York & Presbyt. Hosp., 2023 N.Y. Slip Op. 04258 (1st Dep’t, 2023)(internal citations omitted).

[5] Matter of Eckert, 2023 N.Y. Slip Op. 03270 (3d Dep’t, 2023)(internal citations omitted).

[6] A word Katryna cannot ever seem to pronounce.

[7] The remaining sections are: § 2002. Error in ruling of court, § 2003. Irregularity in judicial sale, § 2004. Extensions of time generally, and § 2005. Excusable delay or default.

[8] Schupak, Rosenfeld & Fischbein v. Campanelli Indus., Inc., 51 A.D.2d 699 (1st Dep’t, 1976); see also Dahlem v. Universal Sch. Bus Leasing, Inc., 35 A.D.2d 992 (2d Dep’t, 1970); Leale v. NY City Health & Hosps. Corp., 69 A.D.2d 832 (2d Dep’t, 1979).