Have you heard the one about the $1 million fee award that walked into a spam filter?

It’s no joke.

UPDATE:  After reading my original post, a lawyer shared a story with me and authorized me to share it with you.  I’ve appended the story to this column. Because I think the story might serve as a valuable tip, I’m re-posting this blog to help draw attention to it. 

I’ve often blogged on the ethical duty of tech competence.  My posts on the topic are here.

Now, a cautionary tale from the real world.

Alberto Bernabe is a law professor at The John Marshall Law School. He’s also a regular presence on this blog’s #fiveforfriday Honor Roll.  Yesterday, on his own blog, Professor Bernabe posted ‘My computer ate my homework’ is not a good excuse.  His post links to a case that involves tech competence and a missed deadline to appeal an order awarding $1,000,000.00 in attorney’s fees.

The full story comes from Law For Lawyers Today.  The headline says it all: Deleted spam leads to missed appeal; not excusable, FL court of appeals holds.  Here’s the quick version:

  • Ben sued Tom.
  • Lawyer represented Ben.  Attorney, who works at Firm, represented Tom.
  • Ben won.
  • Lawyer moved for attorney’s fees.
  • The court granted the motion.
  • The court e-mailed the order to Attorney.
  • Attorney’s Firm’s e-mail system “filtered out” the order as spam.
  • Firm’s e-mail system was configured to delete spam after 30 days, without notice to a person.
  • Firm’s e-mail system deleted the order.
  • Tom moved for relief from judgment.
  • Attorney argued that Firm did not receive the order in time to file an appeal.
  • The trial court denied the motion.
  • An appellate court affirmed the trial court’s decision.

At the hearing on Tom’s motion for relief from judgment, Firm’s former IT person testified that he had advised Firm against configuring its e-mail system to delete spam after 30 days and without notice to a person.  He also testified that he advised Firm to buy an e-mail backup system and to retain a tech vendor to deal with e-mail spam.  Firm did not take the advice, in part to save money.

The appellate court noted that Firm’s failure to learn about the order was not the result from “mistake, inadvertence, surprise or excusable neglect.”  Rather, Firm intentionally chose to use “a defective e-mail system without any safeguards or oversight to save money. Such a decision cannot constitute excusable neglect.”

Competence includes tech competence.  For now, I’ll leave you with the final paragraph from the blog post that’s on The Law for Lawyers Today:

  • “The harsh result here may yet be ameliorated if the court of appeals grants rehearing.  In the meantime, however, the scary scenario points to the need to pay attention to your firm’s  technology and processes for handling spam.  And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.”

UPDATE – here’s the abridged version of the story that a lawyer shared with me after reading my original post.

  • Lawyer represented Client.
  • Throughout matter, Lawyer & Client communicated via e-mail.
  • Matter went to a bench trial.
  • In a written decision, Trial Court found against Client.
  • Lawyer scanned the decision and attached it to an e-mail to Client.  In the body of the e-mail, Lawyer asked “Do you want to appeal?”
  • 31 days after decision was issued, Client called Lawyer and asked “have we heard anything from the trial court?”
  • Lawyer investigated and determined that the e-mail to Client was stuck in outgoing mail and had never left Firm’s server.
  • Over Opposing Party’s objection, Trial Court granted Lawyer & Client leave to file an untimely appeal.
  • On appeal, the Vermont Supreme Court granted Opposing Party’s motion to dismiss the appeal as untimely.

Lawyer’s firm took two lessons from the experience: (1) Lawyer regularly checks Lawyer’s spam folder & outgoing mailbox; and, (2) rather than relying on e-mail silence, Firm adopted a protocol to call clients on important issues, such as the decision whether to appeal.


Tech Incompetence

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