Along the lines of presenting some of the more novel goings-on in OUR courthouse, in a manner that even some of US mere mortals ("non-lawyers") can appreciate, I present the following. All matters are from public records -- "papers filed", supplemented with a few words I heard at the hearing.
Bunk-bed Bunk
or lawyer "side-ring circus"?
"we were ordered to schedule mediation, but we weren't
ordered to be there"
Nothing in this case has been proven, but what had caught my eye was that there was to be a "sanction hearing". Sanction is "legalese" for some sort of punishment or fine for having done something wrong like disobeying a court Order to do or not do something. Anyhow, I went to the hearing, and TWO sanctions of $1625 each were indeed imposed against a lawyer.
Court records show that it started with a suit against a furniture store about a bunk-bed. "Defendant was, at the time of this occurrence, and is now engaged in the business of selling furniture at retail to members of the general public, including the bunk bed the subject of this suit". So says the suit on file against the furniture store.
The suit claims that a child, about five years old at the time, "was injured using this product in the manner intended and foreseen by the Defendant, that is, using the ladder to gain access to the top bunk".
The suit goes on that "the design allowed the ladder to become detached", and that "a safer design was economically and technologically feasible at the time the product left the control of the Defendant by the application of existing or reasonably achievable scientific knowledge". Big words, I thought, but bunk-beds are not exactly rocket science. And what does "reasonably achievable scientific knowledge" mean, as applied to a bunk-bed?
Anyhow, in its Answer, the furniture store said that it was not responsible, essentially because they sold the bed in the same box as it came to them, that they had nothing to do with the design, and filed a cross-claim on the distributor from whom they had gotten the bunk-bed, saying that THEY were the ones responsible.
Thereafter, according to court documents, the store and the distributor got together, and filed suit on the manufacturer, who was down somewhere in BRAZIL, claiming that THEY were responsible because they "knowingly and intentionally introduced its products into the stream of commerce in Texas." Pretty good "lawyer talk", I thought, but still no specifics on the bunk-bed.
Then after some problems serving the suit on the folks in BRAZIL, by international certified mail, some lawyer out of Dallas does appear (by paper), claiming that Texas courts do not have jurisdiction, essentially because the folks in BRAZIL are not from Texas, have no factory here, and did not do anything to make the bunk-bed wind up in Texas.
Then somewhere along the line, there was a request for a "Court-ordered EXPERT report", on bunk-beds I suppose. But anyhow, all the lawyers agreed to go before a mediator to "avoid the expenses of taking extensive depositions in this case".
They drew up an order (there are FOUR sides in the court by now!), all signed it, and got the judge to sign it, i.e. to order that "the parties schedule a mediation within the next 45 days from the entry of this Order", even naming the mediator. Even the folks from BRAZIL, although they were standing by their claim of no jurisdiction over them, had agreed to participate in mediation, through the lawyer one would suppose, since he was one of the ones who had drawn up the Order.
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According to court records, at the hour set for mediation, the Dallas lawyer for the folks from Brazil does not show, sending instead a fax that he has been instructed not to participate. Later he would write that the Brazilians had "decided that the matter was too complex to resolve expeditiously and the proceedings were too far away from its operations to resolve the lawsuit without unreasonable and excessive expense", almost as if someone had suddenly moved BRAZIL further away, I thought. But then, perhaps the bunk-bed matter had indeed become "too complex" by this time, with all the lawyers involved, I thought.
Anyhow, they had decided that they "would rather assert these and other issues in its own jurisdiction", in BRAZIL, of course. Later the lawyer was to claim, on paper, that he had still been trying to get the folks from BRAZIL to participate, by telephone, in the mediation, but that they had said NO. His court paper, however, did not address the issue of an INTERPRETER.
Another court document states, "[Our] biggest problems are the high costs of the lawsuit, the impossibility of Mr. [ ] going to the USA because he doesn't have USA visa and it would take about six months to get one. And also, the impossibility of determining the period of time that the process will take to end. Moreover, the main reason for stopping participating in the lawsuit is because of the non-observance of the Inter-American Convention", whatever that meant. (emphasis added)
Anyhow, the furniture store and the distributor filed motions for sanctions, to recover the expenses they had incurred in going to mediation, claiming that "All other parties appeared at the mediation, attempted to resolve this matter, but were unsuccessful". They wanted to be paid for their effort, and asked the judge to make the Dallas lawyer for the folks from BRAZIL pay.
The Dallas lawyer for the BRAZILIAN manufacturer, in response, wrote:
"Movant misleads the court in its recitation of facts, stating first that 'all parties agreed to mediate this case', and then asserting that the Agreed Order to Mediate contained 'the signatures of all counsel of record, including counsel for [the BRAZILIANS]' -- implying that all parties of record and their counsel had been ordered to mediate. See Motion at Section I. Interpretation of the provisions of a court order which is the subject of contempt procedings [sic] cannot rest upon implication or conjecture. Ex Parte Kraus, 863 S.W.2d 104, 106 (Tex. App. - Corpus Christi 1993). An examination of the Agreed Order attached hereto as Exhibit B reveals that the Order directs that 'the parties schedule a mediation within the next 45 days from the entry of this order' -- nothing more. See, Agreed Order, par 4. Since a mediation was scheduled, [Brazilians] complied with this directive." (emphasis added)
What gall, I thought, these guys had ALL agreed to go to mediation, drawn up an Order, ALL signed it, got the judge to sign it, and this lawyer is now arguing that the Order did not specifically Order ALL to actually GO TO MEDIATION! But that was not all:
"More importantly, the Order did not direct [ ] counsel to attend mediation - only 'the parties'. No duties or obligations were imposed upon [ ] counsel by the court's order, therefore, contempt proceedings cannot stand against [ ] counsel on the basis of the failure of [ ] counsel to comply with the Agreed Order". Again, what gall, I thought. But that was not all:
"As is evidenced by the email letter attached to the Affidavit of [ ], [the BRAZILIANS] is choosing to assert its defenses in Brazil where it has a stronger position pursuant to the Inter-American Convention and where jurisdiction is proper. This is the position which [the BRAZILIANS] is entitled to assert to its procedural advantage regardless of the presence and/or participation of Respondents as local counsel."
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Anyhow, the presence of TWO sanctions of $1625 each, to be paid to the furniture store and the distributor, show that the judge did not buy the excuse.
Also, I thought, what would have happened if the BRAZILIANS had tried to shift the blame on someone in CHINA for having supplied them with a defective nail, screw, latch, or whatever, and if the folks from CHINA, in turn had blamed whoever made, translated, or printed the directions for the parents to assemble the bunk-bed?
And what if the lawyer ordered to twice pay the $1625, simply did not, what then, or how would anyone know, unless the other lawyers complained to the court, and what then? Throw him in jail?
And what about the status of the suit? The complaint had been that "the design allowed the ladder to become detached", but a furniture store has nothing to do with the design, nor did the distributor, and the folks from Brazil are GONE!
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So what? Go turn off judge Judy or judge Brown, or whatever, and come go see the REAL thing now and then. Go visit OUR courthouse. Try it, you may like it!