The Indigent Client
Sunday, March 30, 2008 at 11:10
Posted by Giovanni Diviacchi
As any experienced trial attorney knows, in the small suburban and rural courts that dominate a state's legal system, it's not “what you know” but “who you know” that really matters. The local district courts of the liberal, free-thinking state of Massachusetts are no different. As an old school trial attorney once told me, if you leave the Boston area with a copy of the Rules of Civil and Criminal Procedure, you automatically become one of the smartest and prepared trial attorneys in the territory.
A woman contacted a colleague of mine about defending a small legal fee claim of approximately $5,000.00 in Falmouth District Court (Cape Cod) filed by a local attorney well-known to the District Court's presiding judges and clerks. The woman had recently lost her job and was divorced from her husband, and was again living with her family as a result. She felt that she was overcharged for what was an uncontested divorce. However, she made the mistake of appearing before the judge on a summary judgment motion by the attorney without knowing that her opposition should be stated under the pains and penalties of perjury. She lost and the judge awarded judgment for the local attorney (What a surprise).
At this point the women contacted my friend. Based on her story, he also felt that she had been overcharged and he decided to help her get the case opened again. It was then that he would get involved to help her get a reasonable settlement of the fees. At that time, defendants in district court had a right of appeal to superior court to preserve their jury right. My colleague told her the procedure for filing the appeal and told her that he would take over settlement discussions once it was docketed in superior court.
She promptly filed the notice of appeal along with an affidavit of indigency to waive the filing fee and the clerk's office proceeded to assemble the records for transfer to Superior Court. At this point the local attorney filed a motion to dismiss the notice of appeal because he did not believe that the appeal would be meritorious. When the woman informed my friend of this, he told her that such is not a basis for a dismissal of a notice of appeal and that she should simply oppose the motion on such basis. To our surprise the judge dismissed the notice of appeal. My friend told her to file a new notice of appeal of that decision. The local attorney filed another motion to dismiss the notice of appeal based on the same argument that the appeal was not meritorious.
At this point my friend had enough, filed an appearance, and he appeared in opposition (He made the mistake of making it an issue of "principle"). So the local judge, seeing that an attorney for the woman had appeared, grudgingly, without comment, denied the motion to dismiss (just as he should have denied the prior motions to dismiss!). So far so good.
When the case got before the Appellate Division, the local attorney made the same argument that the notice of appeal should be dismissed because it was not meritorious. This time around the court sua sponte on its own decided that the appeal should have been dismissed not for any reasons argued but because my client had failed to pay a filing fee when she filed the first notice of appeal.
What??? This, of course, made no sense. My friend checked the file. It turned out that the district court clerk's office had decided that affidavits of indigency are confidential and should be filed in a separate folder and not placed in the Record for appeal. My friend had the Record corrected to include the affidavit of indigency and proceeded anew before the next appellate level. Again, so far so good.
At this point the local attorney's filed briefs contained the same (arghhh – guess he wanted to keep his paralegal busy making copies) arguments. This time around, the state Court of Appeals (one level below our Supreme Judicial Court. Yes, I said Supreme Judicial Court), decided that the appeal should have been dismissed not for any reason argued but because the indigent client should have filed a new affidavit of indigency with the second notice of appeal --- without being asked to do so by the clerk's office. And of course the Court of Appeals ordered the decision to be unpublished.
A woman contacted a colleague of mine about defending a small legal fee claim of approximately $5,000.00 in Falmouth District Court (Cape Cod) filed by a local attorney well-known to the District Court's presiding judges and clerks. The woman had recently lost her job and was divorced from her husband, and was again living with her family as a result. She felt that she was overcharged for what was an uncontested divorce. However, she made the mistake of appearing before the judge on a summary judgment motion by the attorney without knowing that her opposition should be stated under the pains and penalties of perjury. She lost and the judge awarded judgment for the local attorney (What a surprise).
At this point the women contacted my friend. Based on her story, he also felt that she had been overcharged and he decided to help her get the case opened again. It was then that he would get involved to help her get a reasonable settlement of the fees. At that time, defendants in district court had a right of appeal to superior court to preserve their jury right. My colleague told her the procedure for filing the appeal and told her that he would take over settlement discussions once it was docketed in superior court.
She promptly filed the notice of appeal along with an affidavit of indigency to waive the filing fee and the clerk's office proceeded to assemble the records for transfer to Superior Court. At this point the local attorney filed a motion to dismiss the notice of appeal because he did not believe that the appeal would be meritorious. When the woman informed my friend of this, he told her that such is not a basis for a dismissal of a notice of appeal and that she should simply oppose the motion on such basis. To our surprise the judge dismissed the notice of appeal. My friend told her to file a new notice of appeal of that decision. The local attorney filed another motion to dismiss the notice of appeal based on the same argument that the appeal was not meritorious.
At this point my friend had enough, filed an appearance, and he appeared in opposition (He made the mistake of making it an issue of "principle"). So the local judge, seeing that an attorney for the woman had appeared, grudgingly, without comment, denied the motion to dismiss (just as he should have denied the prior motions to dismiss!). So far so good.
When the case got before the Appellate Division, the local attorney made the same argument that the notice of appeal should be dismissed because it was not meritorious. This time around the court sua sponte on its own decided that the appeal should have been dismissed not for any reasons argued but because my client had failed to pay a filing fee when she filed the first notice of appeal.
What??? This, of course, made no sense. My friend checked the file. It turned out that the district court clerk's office had decided that affidavits of indigency are confidential and should be filed in a separate folder and not placed in the Record for appeal. My friend had the Record corrected to include the affidavit of indigency and proceeded anew before the next appellate level. Again, so far so good.
At this point the local attorney's filed briefs contained the same (arghhh – guess he wanted to keep his paralegal busy making copies) arguments. This time around, the state Court of Appeals (one level below our Supreme Judicial Court. Yes, I said Supreme Judicial Court), decided that the appeal should have been dismissed not for any reason argued but because the indigent client should have filed a new affidavit of indigency with the second notice of appeal --- without being asked to do so by the clerk's office. And of course the Court of Appeals ordered the decision to be unpublished.
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