by Justice William W. Bedsworth
We have reached that point in man’s development where any reasonably advanced technology is indistinguishable from magic.
~ Sir Arthur C. Clarke
I’m dancing as fast as I can.
~ Juice Newton
These two quotes, uttered by two people who have about as much in common as chipmunks and whales, pretty much sum up my efforts to move into the Twenty-First Century. We’re seventeen years in now, and I’ve adjusted to it about as well as I used to adjust to curveballs: I can see the spin, I know what’s coming, but I still spend a lot of time sitting on the bench mumbling about my inability to handle it.
I am not a complete Luddite. I’m comfortable with my computer. Word-processing has made me a better, more careful writer. And the intertubes have enabled me to retrieve my photos, watch my grandchildren ski, and play in fantasy baseball leagues1 against competition from strangers all over the country. I like all of that.
But it’s still indistinguishable from magic for me. I have no idea how this stuff gets into the tubes where I find it, I have no idea how it gets out of the tubes and into my home or office, and I’m having to dance like crazy to keep up with it.
Every few months an IT maven comes into my chambers and tells me I have to learn a new operating system . . . or replace my phone . . . or rammelfratz my thingamabob—all of which will require either four hours of training or six months of cursing and kicking the water cooler. My choice.
Granted, this is not an entirely new experience. I used to have the same problem with mechanics: “Your Johnson rod has worn through the Knudsen nut and they both have to be replaced, along with the Iskenderian carburetion valves. It’ll run about $800 plus parts and labor. Or you could just let your daughter keep driving it until it blows up.”
But if worse came to worst with the mechanic, I could take a bus to the office.2 It’s different with electronics. I can’t do my job anymore unless I understand how to use this stuff.
Our court has electronic filing now. Briefs don’t come on paper unless some Neanderthal hikes out to the forest and chops down a tree. Instead, they come in little electronic blips, a gazillion zeroes and ones that tiny little diodes and chips and Iskenderian carburetion valves translate into words that appear on my screen as magically as crocuses popping up through the snow.3
I no longer try to understand this. I belong to a religion that believes in flaming shrubberies that talk, people who live inside the belly of a whale, and tripartite divine beings. You can’t stay in that club if you’re uncomfortable with mystery. So I’m fine with not understanding how these characters appear on the electric box above my keyboard.4
But dealing with them once they appear is another matter entirely. That I need to be able to handle. And it’s requiring an adjustment.
I can find the cited cases—which, as I understand it, lurk inside my monitor like a colony of over-educated termites—but reading them on the screen is an entirely different matter.
For some reason, I retain much less of what I scroll through than I do of what I turn pages through. So I find the citations in the ether of my monitor and then walk across my chambers to pull down a book so I can actually read and understand the case.5 This is the legal equivalent of hiring a French chef to pour the milk onto your cereal.
I’m going to a seminar next week to learn about electronic discovery. We didn’t have electronic discovery when I practiced,6 and I just know I’m going to be expected to make some kind of definitive pronouncement about it someday soon, so I have to go get Professor Iskenderian to show me where the on/off switch is.
Oh, and those electronically filed briefs I mentioned? They’ve changed filing deadlines, too.
It used to be that no judge got through his career7 without having to field a few motions for relief for default that revolved around an attorney’s declaration that included the plaintive lament, “Your honor, we were late filing but it wasn’t our fault. We were late because there was an accident on the freeway that delayed our attorney service. The clerk’s office closed three minutes before we got there.”
Now, with electronic filing, the deadline has been changed to midnight. No freeways, no accidents, no problems, right? Well . . . not exactly.
Our rule actually requires the brief to be filed by 11:59. 8 If you file at midnight, you’re in violation of Rule of Court 8.77 and your brief will “be deemed to have turned into a pumpkin which was received the next court day.”9 It’s just a matter of time—so to speak—before some poor judge has to sort that one out.
Actually, a similar thing has already happened. In Utah. In the federal district court. In a case called Amy G. v. United Healthcare, a lawyer filed his opposition to a summary judgment motion eighteen minutes late. At 12:18 a.m.
His motion for relief from default said nothing about freeways or traffic accidents. It said he would have been on time except that his favorite basketball team, the Utah Jazz, blew a twenty-five-point lead in their playoff game against the Oklahoma City Thunder and he was so devastated that he couldn’t finish in time.
That’s right: The playoffs ate my homework.
According to his motion, the prospects for timely submission of his opposition were “excellent,” until the Jazz tanked. “But the emotional effect of an eventual Jazz loss (which began at approximately 10 p.m.) was, to say the least, dispiriting. The pallor cast on counsel’s mind eventually led to submission of a written product that was twice as long and half as strong as it would have been had the Jazz emerged victorious. As well as 18 minutes tardy.”
Senior U.S. Judge Bruce Jenkins granted the motion for relief from default (by extending the deadline for filing). Judge Jenkins is ninety years old. DaVinci said, “Old age has wisdom for its food,” and Judge Jenkins is apparently a big eater.
It also didn’t hurt that opposing counsel, from a firm called Dorsey & Whitney in Minneapolis,10 didn’t object. There are still a lot of lawyers who understand that ours is a profession, not a business. Not enough, but a lot.
So kudos to parties and a judge who solved a Twenty-First Century dilemma with a little Nineteenth Century decency and common sense. May they keep on dancing this fast.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at firstname.lastname@example.org. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.